95 U.S. 714 (1878), argued 28 Nov. 1877, decided 21 Jan. 1878 by vote of 8 to 1; Field for the Court, Hunt in dissent. Pennoyer v. Neff provided the Court's earliest consideration of the constitutional and procedural bases for a state's exercise of jurisdiction over an individual who is neither a resident nor a citizen of the state and who is not physically present there. The case involved title to real property located in Oregon owned by a nonresident defendant. To secure judgment in a contract suit against him, the plaintiff attached the property and provided “constructive service” on the defendant by publication of a legal notice in a local newspaper.
For the Court, Justice Stephen J. Field found that this combination of attachment and constructive service was insufficient to give the state jurisdiction over an out-of-state defendant. He laid down two complementary rules: “every State possesses exclusive jurisdiction and sovereignty over persons and property within its territory”; and “no State can exercise direct jurisdiction and authority over persons or property without its territory” (p. 722). His opinion was based both on physical notions of jurisdiction (i.e., physical presence) and concepts of state sovereignty derived from the Tenth Amendment.
Pennoyer proved increasingly inadequate as a comprehensive statement of in personam jurisdiction in the twentieth century, especially because of the revolutions in transportation and communications, and because the idea of physical presence was irrelevant to explain jurisdiction over corporations. The Court articulated a supplemental theory of in personam jurisdiction in International Shoe Co. v. Washington (1945), based on traditional notions of fair play and substantial justice. But Burnham v. Superior Court (1990) demonstrated that if the Tenth Amendment basis of Pennoyer is obsolete, the concept of physical presence is not, and can still furnish the basis for so-called tag service on a defendant temporarily present in the forum state.
William M. Wiecek