ELIZABETH M. CHAMBERS, Plff. in Err., v.

BALTIMORE & OHIO RAILROAD COM¬ PANY.

(See S. C. Reporter’s ed. 142-160.)

Error to state court — Federal question

— how raised.

was not properly and seasonably raised in the state courts is not available to defeat the jurisdiction of the Supreme Court of the United States of a writ of error to the highest court of a state, where it clearly and unmistakably appears from the opinion of that court that the Federal question was as¬ sumed to be in issue, was decided against the claim of Federal right, and that the de¬ cision of the question was essential to the judgment rendered.

Constitutional law' — ■ privileges and im¬ munities.

zens in the several' states, secured, by U. S.

Note. — As to when Federal question is raised in time to sustain the appellate ju¬ risdiction of the Federal Supreme Court over state courts — see note to Chicago, I. & L. R. Co. v. McGuire, 49 L. ed. U. S. 414.

On how and when questions must be raised and decided in a state court in order to make a case for a writ of error from the Supreme Court of the United States— see note to Mu¬ tual L. Ins. Co. v. McGrew, 63 L.R.A. 33.

As to the validity of class legislation, see notes to State v. Goodwill, 6 L.R.A. 621, and State v. Loomis, 21 L.R.A. 789.

As to constitutional equality of privileges, immunities, and protection — see note to Louisville Safety Vault & T. Co. v. Louis¬ ville & N. R. Co. 14 L.R.A. 579.

On comity as to taking jurisdiction of cause of action for death arising outside of state — see note to Boston & M. R. Co. v. Hurd, 56 L.R.A. 195.

143

Supreme Court of the United States.

Oct. Term,

Const, art. 4, § 2, fl 1, to the citizens of each state, are not denied by the provision of an Ohio statute under which, as construed by the highest court of that state, the right of action created by Pa. act of April 15, 1851, p. G74, § 19, in favor of the widow or personal representatives of one whose death is caused by negligence, can be maintained in the Ohio courts only when the deceased was an Ohio citizen.

[No. 22.]

Argued October 17, 18, 1907. Decided No¬ vember 18, 1907.

IN ERROR to the Supreme Court of the State of Ohio to review a judgment for defendant in an action to recover damages for the wrongful death of a nonresident, en¬ tered upon reversing judgments for plaintiff in the Circuit and Common Pleas Courts of Mahoning County, in that state. Affirmed.

See same case below, 73 Ohio St. 16, 11 L.R.A. (N.S.) 1012, 76 N. E. 91.

The facts are stated in the opinion.

Mr. Charles Koonce, Jr., argued the cause, and, with Messrs. R. B. Murray and W. S. Anderson, filed a brief for plaintiff in error :

The right to maintain a transitory action by a citizen of one of the states of the United States, in the courts of a sister state, is one of the privileges and immuni¬ ties comprehended by § 2 of article 4 of the Constitution of the United States.

Ward v. Maryland, 12 Wall. 418-430, 20 L. ed. 449-453; Cole v. Cunningham, 133 U. S. 107-114, 33 L. ed. 538-542, 10 Sup. Ct. Rep. 209; Blake v. McClung, 172 U. S. 239- 256, 43 L. ed. 432-439, 19 Sup. Ct. Rep. 165; Moredock v. Kirby, 118 Fed. 182; Paul v. Virginia, 8 Wall. 168-180, 19 L. ed. 357- 360; Eingartner v. Illinois Steel Co. 94 Wis. 70, 34 L.R.A. 503, 59 Am. St. Rep. 859, 68 N. W* 664; Cofrode v. Gartner, 79 Mich. 343, 7 L.R.A. 511, 44 N. W. 623; Jefferson¬ ville, M. & I. R. Co. v. Hendricks, 41 Ind. 48; Schell v. Youngstown Sheet Iron & Tube Co. 26 Ohio C. C. 209; State v. Cadigan, 73 Vt. 245, 57 L.R.A. 666, 87 Am. St. Rep. 714, 50 Atl. 1079; State ex rel. Hoadley v. In¬ surance Comrs. 37 Fla. 564, 33 L.R.A. 288, 20 So. 772; Roby v. Smith, 131 Ind. 342, 15 L.R.A. 792, 31 Am. St. Rep. 439, 30 N. E. 1093; Shirk v. La Fayette, 52 Fed. 857; Farmers’ Loan & T. Co. Chicago & A. R. Co. 27 Fed. 146; State v. Duckworth, 5 Idaho, 642, 39 L.R.A. 365, 95 Am. St. Rep. 199, 51 Pac. 456; Corfield v. Coryell, 4 Wash. C. C. 380, Fed. Cas. No. 3,230.

The real purpose and effect of the act as construed was, and is, to discriminate in favor of citizens of Ohio and against citi- 144

zens of other states. Theoretical exceptions cannot save it from the ban of the constitu¬ tional provision herein in question.

Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418; Henderson v. New York, 92 U. S. 259-268, 23 L. ed. 543- 548; Reid v. Colorado, 187 U. S. 137-153, 47 L. ed. 108-116, 23 Sup. Ct. Rep. 92; Moredock v. Kirby, supra.

The statute, as construed, is a denial of the right of the citizen of a sister state to have the cause of action resulting from the wrongful act enforced in favor of his wife and children.

Helman v. Pittsburgh, C. C. & St. L. R. Co. 58 Ohio St. 408, 41 L.R.A. 860, 50 N. E. 986.

The state of Ohio cannot forbid citizens of other states from suing in its courts, that right being enjoyed by its own people.

Eingartner v. Illinois Steel Co. 94 Wis. 78, 34 L.R.A. 503, 59 Am. St. Rep. 859, 6S N. W. 664; Blake v. McClung, supra.

In order that the statement that it is against the public policy of the state of Ohio to enforce in its courts a cause of action in favor of a citizen of another state can avail, it must first appear that it would be against the public policy of a state to enforce a like cause of action in favor of a citizen of its own state, or a like cause of action arising in its own state.

Huntington v. Attrill, 146 U. S. 657-670, 36 L. ed. 1123-1129, 13 Sup. Ct. Rep. 224; Stewart v. Baltimore & O. R. Co. 168 U. S. 445, 42 L. ed. 537, 18 Sup. Ct. Rep. 105; Chicago & E. I. R. Co. v. Rouse, 178 Ill. 132, 44 L.R.A. 410, 52 N. E. 951; Northern P. R. Co. v. Babcock, 154 U. S. 190, 38 L. ed. 958, 14 Sup. Ct. Rep. 978; Law v. Western R. Co. 91 Fed. 817 ; Davidow v. Pennsylva¬ nia R. Co. 85 Fed. 943; Van Doren v. Penn¬ sylvania R. Co. 35 C. C. A. 282, 93 Fed. 260; Wilson v. Tootle, 55 Fed. 211; Walsh v. New York & N. E. R. Co. 160 Mass. 571, 39 Am. St. Rep. 514, 36 N. E. 584; Burns v. Grand Rapids & I. R. Co. 113 Ind. 169, 15 N. E. 230; Leonard v. Columbia Steam Nav. Co. 84 N. Y. 48, 38 Am. Rep. 481; East Tennessee, V. & G. R. Co. v. Lewis, 89 Tenn. 235, 14 S. W. 603; McLeod v. Connecticut & P. Rivers R. Co. 58 Vt. 726, 6 Atl. 648; Boyce v. Wabash R. Co. 63 Iowa, 70, 50 Am. Rep. 730, 18 N. W. 673; Bruee v. Cincinnati R. Co. 83 Ky. 174; Missouri P. R. Co. v. Lewis, 24 Neb. 848, 2 L.R.A. 67, 40 N. W. 401 ; Knight v. West Jersey R. Co. 108 Pa. 250, 56 Am. Rep. 200; O’Reilly v. New York & N. E. R. Co. 16 R. I. 388, 5 L.R.A. 364, 6 L.R.A. 719, 17 Atl. 171, 906, 19 Atl. 244; Nelson v. Chesapeake & O. R. Co. 88 Va. 971, 15 L.R.A. 583, 14 S. E.

The fact that litigation, may congest the

207 U. S.

court dockets is not the kind of reason which will permit it to escape the charge of un constitutionality on the ground of public policy.

Cofrode v. Gartner, 79 Mich. 332, 7 L.R. A. 511, 44 N. W. 623.

This court has jurisdiction to review this case.

Capital City Dairy Co. v. Ohio, 183 U. S. 238-242, 46 L. ed. 171-174, 22 Sup. Ct. Rep. 120; Missouri, K. & T. R. Co. v. Elliott, 184 U. S. 530-534, 46 L. ed. 673-677, 22 Sup. Ct. Rep. 446; Merchants’ Nat. Bank v. Wehrmann, 202 U. S. 295-299, 50 L. ed. 1036—1040, 26 Sup. Ct. Rep. 613; Rector v. City Deposit Bank, 200 U. S. 405-412, 50 L. ed. 527-530, 26 Sup. Ct. Rep. 289; Cin¬ cinnati, P. B. S. & P. Packet Co. v. Bay, 200 U. S. 179-182, 50 L. ed. 428-432, 26 Sup. Ct. Rep. 208.

Mr. George F. Arrel argued the cause, and, with Messrs. James P. Wilson and Ar¬ rel, Wilson, & Harrington, filed a brief for defendant in error:

The Federal right, title, privilege, or im¬ munity must be specially set up or claimed, in order to give this court jurisdiction to review the final judgment of the state su¬ preme court.

F. G. Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Sayward v. Denny, 158 U. S. 180, 183, 184, 186, 39 L. ed. 941-943, 15 Sup. Ct. Rep. 777 ; Home for Incurables v. New York, 187 U. S. 155, 47 L. ed. 117, 63 kR.A. 329, 23 Sup. Ct. Rep. 84; Mutual L. Ins. Co. v. McGrew, 188 U. S. 291, 47 L. ed. 480, 63 L.R. A. 33, 23 Sup. Ct. Rep. 375; Hooker v. Los Angeles, 188 U. S. 314, 47 L. ed. 487, 63 L.R.A. 471, 23 Sup. Ct. Rep. 395.

Outside of what is said in the opinion, it could not be discovered, except by infer¬ ence, that any right under the Federal Con¬ stitution had been set up or claimed in that court; and in Ohio, the syllabus, and not the opinion, contains the law of the case, as settled and determined by the court.

The certificate of the chief justice of the supreme court of Ohio, certifying that this right, privilege, or immunity was specially set up or claimed, is not sufficient alone to give this court jurisdiction.

Home for Incurables v. New York, supra. The statute does not discriminate between citizens of Ohio and of other states.

Paul v. Virginia, 8 Wall. 180, 19 L. ed.

The constitutional provision does not create, but only secures, privileges and im¬ munities of citizens of the various states.

Slaughter-House Cases, 16 Wall. 36, 21 L. ed. 394.

A state may establish and enforce its own public policy.

52 Ii. ed.

imore & O. R. Co. i4(j

Texas & P. R. Co. v. Cox, 145 U. S. 593, 36 L. ed. 829, 12 Sup. Ct. Rep. 905; Stewart v. Baltimore & O. R. Co. 168 U. S. 445, 42 L. ed. 537, 18 Sup. Ct. Rep. 105.

Mr. Justice Moody delivered the opinion of the court:

This is a writ of error directed to the supreme court of the state of Ohio. The plaintiff in error is the widow of Henry E. Chambers, who, while in the employ of the defendant in error as a locomotive engineer, and engaged in the performance of his duty, received injuries from which he shortly af¬ terwards died. Both nusband and wife were, at the time of the injuries and death, citizens of Pennsylvania, and the wife has since continued to be such. The injuries and death occurred in Pennsylvania. The widow brought an action in the court of common pleas of the state of Ohio against the defendant railroad, alleging that the in¬ juries were caused by its negligence. In that action she sought to recover damages under certain parts of the Constitution and laws of Pennsylvania printed in the mar¬ gin, f which provided for the recovery of

tSections 18 and 19 of the act of April 15, 1851, are as follows: “Sec. 18. No ac¬ tion hereafter brought to recover damages for injuries to the person by negligence or default shall abate by reason of the death of the plaintiff ; but the personal representa¬ tives of the deceased may be substituted as plaintiff, and prosecute the suit to final judgment and satisfaction.” “Sec. 19. Whenever death shall be occasioned by un¬ lawful violence or negligence, and no suit for damages be brought by the party in¬ jured, during his or her life, the widow of any such deceased, or, if there be no widow, the personal representatives, may maintain an action for and recover damages for the death thus occasioned.” Sections 1 and 2 of the act of April 26, 1855, are as follows: “Sec. 1. The persons entitled to recover dam¬ ages for any injury causing death shall be the husband, widow, children, or parents of the deceased, and no other relative, and the sum recovered shall go to them in the pro¬ portion they would take his or her personal estate in case of intestacy, and that without liability to creditors.” “Sec. 2. The dec¬ laration shall state who are the parties en¬ titled in such action ; the action shall be brought within one year after the death, and not thereafter.” By § 21, article 3, of the Constitution of the state of Pennsylva¬ nia of 1874, it is provided as follows, to wit: “Sec. 21. No act of the general assembly shall limit the amount to be recovered for injuries resulting in death, or for injuries to person or property, and in case of death from such injuries the right of action shall survive, and the general assembly shall pre¬ scribe for whose benefit such actions shall be prosecuted.”

145

146-149

Supreme Court of the United States.

Oct. Term,

[ J 4 7 ] damages *for death. The plaintiff had a verdict and judgment in the court of com¬ mon pleas, from which, by petition in error, the case was removed first to an interme¬ diate court and then to the supreme court of the state. There it was insisted by the defendant that the action could not be maintained in the courts of Ohio. The su¬ preme court sustained this contention, re¬ versed the judgments of the court below, and entered judgment for the defendant. A statute of Ohio provided that “whenever the death of a citizen of this state has been or may be caused by a wrongful act, neg¬ lect, or default in another state, territory, or foreign country, for which a right to maintain an action and recover damages in respect thereof is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the stat¬ ute of such other state, territory, or foreign country.” [Bates, Anno. Stat. § 6134a.] There was no other statutory provision on the subject. The supreme court held that the action authorized by this statute for a death occurring in another state was only when the death was that of a citizen of Ohio; that the common law of the state forbade such action; and that, as the per¬ son for whose death damages were demand¬ ed in this case was not a citizen of Ohio, the action would not lie. The plaintiff brings the case here on writ of error, al¬ leging that the statute thus construed and [ i 4 8]the judgment ‘based upon that construction violate article 4, § 2, paragraph 1, of the Constitution of the United States, which provides that “the citizens of each state shall be entitled to all privileges and im¬ munities of citizens in the several states.” This allegation presents the only question' for our consideration.

The defendant objects to our jurisdiction to re-examine the judgment because the Federal question was not properly and sea¬ sonably raised in the courts of the state. But it clearly and unmistakably appears from the opinion of the supreme court that the Federal question was assumed to be in issue, was decided against the claim of Fed¬ eral right, and that the decision of the question was essential to the judgment ren¬ dered. This is enough to give this court the authority to re-examine that question on writ of error. San Jos6 Land & Water Co. v. San Jos6 Ranch Co. 189 U. S. 177, 47 L. ed. 765, 23 Sup. Ct. Rep. 487; Mon¬ tana ex rel. Haire v. Rice, 204 U. S. 291, 51 L. ed. 490, 27 Sup. Ct. Rep. 281.

In the decision of the merits of the case there are some fundamental principles which are of controlling effect. The right 146

to sue and defend in the courts is the al¬ ternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of or¬ derly government. It is' one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution. Corfield v. Cor¬ yell, 4 Wash. C. C. 371, 380, Fed. Cas. No. 3,230, per Washington, J. ; Ward v. Mary¬ land, 12 Wall. 418, 430, 20 L. ed. 449, 452, per Clifford, J. ; Cole v. Cunningham, 133 U. S. 107, 114, 33 L. ed. 538, 542, 10 Sup. Ct. Rep. 269, per Fuller, Ch. J. ; Blake v. McClung, 172 U. S. 239, £52, 43 L. ed. 432, 437, 19 Sup. Ct. Rep. 165, per Harlan,

J.

But, subject to the restrictions of the Federal Constitution, the state may deter¬ mine the limits of the jurisdiction of its courts, and the character of the controver¬ sies which shall be heard in them. The state policy decides whether and to what ‘extent the state will entertain in its courts[l transitory actions, where the causes of ac¬ tion have arisen in other jurisdictions. Different states may have different policies, and the same state may have different policies at different times. But any policy the state may choose to adopt must operate in the same way on its own citizens and those of other states. The privileges which it affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from the citizens of other states is void, because in conflict with the supreme law of the land.

The law of Ohio must be brought to the test of these fundamental principles. It appears from the decision under review (and we need no other authority) that, by the common law of the state, the courts had no jurisdiction to entertain actions to recover damages for death where the cause of action arose under the laws of other states or countries. This rule was universal in its application. The citizen¬ ship of the persons who brought action or of the person for whose death a remedy was sought was immaterial. If the death was caused outside the state and the right of action arose under laws foreign to the state, its courts were impartially closed to all persons seeking a remedy, entirely irre¬ spective of their citizenship. The common law, however, was modified by a statute which, as amended, became the statute un¬ der consideration here. ]3y this statute the

20 7 U. S„

149-152

Chambers v. Baltimore & O. R. Co.

courts were given jurisdiction over certain actions of this description, while the com¬ mon law was left to control all others. A discrimination was thus introduced into the law of the state. The discrimination was based solely on the citizenship of the deceased. The courts were open in such cases to plaintiffs who were citizens of other states if the deceased was a citizen of Ohio; they were closed to plaintiffs who were citizens of Ohio if the deceased was a citi¬ zen of another state. So far as the par¬ ties to the litigation are concerned, the state, by its laws, made no discrimination based on citizenship, and offered precisely 5 0] the same privileges to citizens of *other states which it allowed to its own. There is, therefore, at least a literal conformity with the requirements of the Constitution.

But it may be urged, on the other hand, that the conformity is only superficial; that the death action may be given by the foreign law to the person killed, at the in¬ stant when he was vivus et mortuus, and made to survive and pass to his representa¬ tives (Higgins v. Central New England & W. R. Co. 155 Mass. 17G, 31 Am. St. Rep. 544, 29 N. E. 534) ; that in such cases it is the right of action of the deceased which is brought into court by those who have it by survivorship; and that, as the test of jurisdiction is the citizenship of the person in whom the right of action was originally vested, and the action is entertained if that person was a citizen of Ohio and declined if he was a citizen of another state, there is, in a real and substantial sense, a dis¬ crimination forbidden by the Constitution.

If such a case should arise, and be denied hearing in the Ohio courts by the Ohio law, then, as the denial would be based upon the citizenship of that person in whom the right of action originally vested, it might be necessary to consider whether the Ohio law did not, in substance, grant priv¬ ileges to Ohio citizens which it withheld from citizens of other states. But no such case is before us. The Pennsylvania stat¬ ute which created the right of action sought to be enforced in the Ohio courts has been construed by the courts of Pennsylvania. The applicable section is § 19 of the act of

Fink v. Carman, 40 Pa. 95:

“The 18th section was apparently intend¬ ed to regulate a common-law right of ac¬ tion by securing to it survivorship; but the 19th section was creative of a new cause of action, wholly unknown to the common law. And the right of action was not giv¬ en to the person suffering the injury, since no man could sue for his own death, but to his widow or personal representatives. It was not survivorship of the cause of 52 L. ed.

action which the legislature meant to pro¬ vide for by this section, but *the creation of

an original cause of action in favor of a surviving widow or personal representa¬ tive.”

This is the settled interpretation of the act. Mann v. Weiand, 81* Pa. 243; Penn¬ sylvania R. Co. v. Bock, 93 Pa. 427; En- gles’s Estate, 21 Pa. Co. Ct. 299; McCaf- ferty v. Pennsylvania R. Co. 193 Pa. 339,

74 Am. St. Rep. 690, 44 Atl. 435. It ap¬ pears clearly, therefore, that the cause of action which the plaintiff sought to en¬ force was one created for her benefit and vested originally in her. She has not been denied access to the Ohio courts because she is not a citizen of that state, but be¬ cause the cause of action which she presents is not cognizable in those courts. She would have been denied hearing of the same cause for the same reason if she had been a citizen of Ohio. In excluding her cause of action from the courts the law of Ohio has not been influenced by her citizenship, which is regarded as immaterial. We are unable to see that in this case the plain¬ tiff has been refused any right which the Constitution of the United States confers upon her, and accordingly the judgment is affirmed.

Mr. Justice Holmes, concurring:

Although I do not dissent from the rea¬ soning of the judgment, I prefer to rest my agreement on the proposition that if the stat¬ ute cannot operate as it purports to oper¬ ate it does not operate at all. Ido not think that it can be presumed to mean to give to all persons a right to sue in case the Consti¬ tution forbids it to make the more limited grant that it attempts. Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 565, 46 L. ed. 679, 692, 22 Sup. Ct. Rep. 431. Apart from the statute no one can maintain an ac¬ tion like this in Ohio. I may add that I do not understand that there is anything in the judgment that contradicts my opin¬ ion as to the law.

Mr. Justice Harlan (with whom con¬ curred Mr. Justice White and Mr. Justice McKenna), dissenting:

The plaintiff in error, Elizabeth M. Chambers, a citizen of Pennsylvania, sought by this action against the Baltimore &

*Ohio Railroad Company, in the common

pleas court of Mahoning county, Ohio, to recover damages on account of her hus¬ band’s death in Pennsylvania in 1902, — his death having been caused, it was alleged, by the negligence of the defendant railroad company while operating a part of its line in Pennsylvania, The railroad company

147

152-154

Supreme Court of the United States.

Oct. Term,

was brought into court by due service of summons, and there was a trial resulting in a verdict and judgment in favor of the plaintiff for $3,000. The case was carried upon writ of error to the circuit court of Mahoning county and the judgment was there affirmed. That judgment of affirm¬ ance was reversed by the supreme court of Ohio, with directions to enter judgment for the railroad company.

That the laws of Pennsylvania give a right of action in favor of the widow of a deceased whose death is “occasioned by un¬ lawful violence or negligence” is not dis¬ puted. It is equally clear that the pres¬ ent plaintiff’s cause of action is not local, but is transitory, in its nature, and, speak¬ ing generally, can be maintained in any jurisdiction where the wrongdoer may be found and be brought before the court. Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Stewart v. Baltimore & 0. R. Co. 168 U. S. 445, 42 L. ed. 537, 18 Sup. Ct. Rep. 105.

By a statute of Ohio (1902) in force when this action was brought, it was pro¬ vided that “whenever the death of a citi¬ zen of this state has been or may be caused by a wrongful act, neglect, or default in another state, territory, or foreign coun¬ try, for which a right to maintain an ac¬ tion and recover damages in respect there¬ of is given by a statute of such other state, territory, or foreign country, such right of action may be enforced in this state within the time prescribed for the commencement of such action by the stat¬ ute of such other state, territory, or foreign country.” 95 Ohio Laws, 401. By a previ¬ ous statute (1894) suits of that kind were allowed in Ohio when death was caused by a wrongful act, negligence, or default in another state if such suits were allowed in the state where the death occurred. But that statute, as stated by the court in this case, was repealed by the above act of 1902.

So that the *court, in the present case, held that the act of 1902 changed the former law in two essential particulars: “1. It dispenses with the condition that the state in which the wrongful death occurs shall enforce in its courts the statute of this state of like character. 2. It in terms limits the right therein given to maintain an action in this state for wrongful death occurring in another state, to actions for causing the death of citizens of Ohio, where¬ as original § 6134a gave such right with¬ out limitation or restriction as to citi¬ zenship.” Again, the court said: “Having regard, then, to the scope and effect of the provisions of the section amended, and to the special character of the amendments made, we think it clear that the legislature, 148

by the adoption of amended § 6134a [the act of 1902], undertook and intended there¬ by to limit and restrict the right to re¬ cover in the courts of • this state for a wrongful death occurring in another state, to those cases where the person killed was, at the time of his death, a citizen of Ohio.”

That there may be no mistake as to the decision, I quote the official syllabus of the present case, which, by the law of Ohio, is to be taken as indicating the point ac¬ tually in judgment: “No action can be maintained in the courts of this state upon a cause of action for wrongful death oc¬ curring in another state, except where the person wrongfully killed was a citizen of the state of Ohio.” 73 Ohio St. 16, 76 N. E. 91.

It thus appears that the final judgment in this case for the railroad company rests upon the distinct ground that the courts of Ohio cannot, under the statute of that state, take cognizance of an action for dam¬ ages on account of death occurring in an¬ other state and caused by wrongful act, neglect, or default, except where the per¬ son wrongfully killed was a citizen of Ohio.

In that view, if two persons, one a citizen of Ohio and the other a citizen of Penn¬ sylvania, traveling together on a railroad in Pennsylvania, should both be killed at the same moment and under precisely the same circumstances, in consequence of the negligence or default of the railroad com¬ pany, the courts of Ohio are closed by its statute against any suit *for damages

brought by the widow or the estate of the citizen of Pennsylvania against the rail¬ road company, but will be open to suit by the widow or the estate of the deceased citi¬ zen of Ohio, although by the laws of the state where the death occurred the widow or estate of each decedent would have, in the latter state, a valid cause of action.

Is a state enactment having such effect repugnant to the clause of the Federal Con¬ stitution, art. 4, § 2, which declares that “the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states?” Will not that con¬ stitutional guaranty be shorn of much of its value if any state can reserve, either for its own citizens, or for the estates of its citizens, privileges and immunities which, even where the facts are the same, it denies to citizens or to the estates of citizens of other states?

It is not necessary to fully enumerate the privileges and immunities secured against hostile discrimination by the constitutional provision in question. All agree that among such privileges and immunities are those which, under our institutions, are fundamental in their nature. I cordially

207 U. S.

154-156

Chambers v. Baltimore & 0. R. Co.

assent to what is said upon this point in the opinion just delivered for the majority of the court. The opinion says: “In the decision of the merits of the case there are some fundamental principles which are of controlling effect. The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly govern¬ ment. It is one of the highest and most es¬ sential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution. . . . The privileges which

it [the state] affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from

the citizens of other ^states is void, because in conflict with the supreme law of the land.”

These views are supported by the former decisions of this and other courts. In the leading case of Corfield v. Coryell, 4 Wash. C. C. 371-380, Fed. Cas. No. 3,230, Mr. Justice Washington said: “The inquiry is. What are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free govern¬ ments, and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental prin¬ ciples are it would, perhaps, be more tedious than difficult to enumerate.” Among the particular privileges and immunities which are clearly to be deemed fundamental, the court in that case specifies the right “to institute and maintain actions of any kind in the courts of the state.”

In Paul v. Virginia, 8 Wall. 168, 180, 19 L. ed. 357, 360, the court, speaking by Mr. Justice Field, said: “It was undoubtedly the object of the clause in question [Const, art. 4, § 2] to place the citizens of each state upon the same footing with citizens of other states, so far as the advantages resulting from citizenship in those states are concerned. It relieves them from the disabilities of alienage in other states; it inhibits discriminating legislation against them by other states; it gives them the right of free ingress into other states, and egress from them; it insures to them in other states the same freedom possessed by 52 L. ed.

the citizens of those states in the acquisi¬ tion and enjoyment of property and in the pursuit of happiness ; and it secures to them in other states the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Indeed, without some provision of the kind remov¬ ing from the citizens of each state the dis¬ abilities of alienage in the other states, and giving them equality of privilege with citizens of * those states, the Republic would

have constituted little more than a league of states; it would not have constituted the Union which now exists.”

So, in Ward v. Maryland, 12 Wall. 418- 430, 20 L. ed. 449-452, the court, after re¬ ferring to Corfield v. Coryell, above cited, and speaking by Mr. Justice Clifford, stated that the right “to maintain actions in the courts of the state” was fundamental, and was protected by the constitutional clause in question against state enactments that discriminated against citizens of other states.

Referring to the cases just cited, and to the constitutional clause in question, Mr. Justice Miller, speaking for the court in the Slaughter-House Cases, 16 Wall. 36, 77,

21 L. ed. 394, 409, said: “Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your juris¬ diction.”

In Cole v. Cunningham, 133 U. S. 107- 114, 33 L. ed. 538-542, 10 Sup. Ct. Rep. 269-271, the present Chief Justice, speak¬ ing for the court, said: “The intention of § 2 of article 4 was to confer on the citi¬ zens of the several states a general citizen¬ ship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the like ' circumstances, and this includes the right to institute actions.”

In the more recent case of Blake v. Mc- Clung, 172 U. S. 239-256, 43 L. ed. 432-438,

19 Sup. Ct. Rep. 165-172, the court said:

“We must not be understood as saying that a citizen of one state is entitled to enjoy in another state every privilege that may be given in the latter to its own citizens.

There are privileges that may be accorded by a state to its own people in which citi¬ zens of other states may not participate except in conformity to such reasonable regulations as may be established by the state. For instance, a state cannot forbid citizens of other states from suing in its

149

166-169

Supreme Court of the United States.

Oct. Term,

courts, that right being enjoyed by its own people ; but it may require a nonresident, although a citizen of another state, to give bond for costs, although such bond be not [ 1 5 7 ] required of a resident. Such *a regulation of the interna] affairs of a state cannot reasonably be characterized as hostile to the fundamental rights of citizens of other states. . . . The Constitution forbids

only such legislation affecting citizens of the respective states as will substantially or practically put a citizen of one state in a condition of alienage when he is within or when he removes to another state, or when, asserting in another state the rights that commonly appertain to those who are part of the political community known as the people of the United States, by and for whom the government of the Union was ordained and established.”

These cases, I think, require the reversal of the judgment of the supreme court upon the ground that it denies to the plaintiff a right secured by the Constitution of the United States. The statute of Ohio, we have seen, closes the doors of the courts of that state against the present plaintiff alone because her deceased husband was not, at the time of his death, a citizen of Ohio. Thus, every citizen of Ohio, when in another state, for whatever purpose, is accompanied by the assurance on the part of his state that its courts will be open for suit by his widow or representative if his death, while in another state, is caused by the negligence or default of another person or company. But that privilege is denied by the Ohio statute to the representative of citizens of other states meeting death un¬ der like circumstances. Indeed, if a citi¬ zen of Ohio should go into another state, and, while there, wilfully, or by some wrongful act, neglect, or default on his part, cause the death of someone, although he might be liable to a suit for damages in the state where death occurred, yet, if sued for damages in the courts of his own state, he need only plead in bar of the action in Ohio that the decedent was not, at the time of his death a citizen of Ohio. Such, it seems to me, is the operation of the statute of Ohio as it is interpreted by the court below.

The supreme court of Ohio, it will be observed, does not base its judgment upon any common law of the state apart from its statutes. It says : “From a consideration |158]of the statutes “hereinbefore referred to, and the former decisions of this court, we think it must now be held to be the recog¬ nized policy and established law of this state, that an action for wrongful death occurring in another state will not be en¬ forced in the courts of this state, except where the person killed was, at the time 150

of his death, a citizen of Ohio.” It places its judgment on its statutes and judicial decisions, which it regards as together in¬ dicating the policy and law of the state to be such as to preclude an action for dam¬ ages, except where the deceased was a citi¬ zen of Ohio. That exception, upon what¬ ever basis it may be rested, must fall be¬ fore the Constitution of the United States and be treated as a nullity. The denial to the widow or representative of Chambers of the right to sue in Ohio, upon the ground that he was not a citizen of Ohio when killed, was the denial, in every essential sense, of a fundamental privilege belong¬ ing to him under the Constitution, in vir¬ tue of his being a citizen of one of the states of the Union, — the right to sue and defend in the courts of justice, which right this court concedes to be “one of the high¬ est and most essential privileges of citizen¬ ship.” While in life Chambers enjoyed the right — and it was a most valuable right — - of such protection as came from the rule established in Pennsylvania, that, in case of his death in consequence of the negli¬ gence of others, the wrong done to the de¬ ceased in his lifetime could be remedied by means of suit brought in the name and for the benefit of his widow or personal representative. But Ohio takes this right of protection from him; for the Ohio court would have taken cognizance of this action if the decedent, Chambers, had been, when killed, a citizen of Ohio, while it denies relief to his widow, and puts her out of court solely because her husband was, when killed, a citizen of another state. It thus accords to the Ohio widow of a deceased Ohio citizen a privilege which it withholds from the Pennsylvania widow of a deceased Pennsylvania citizen. If the statutes of Ohio had excluded from the jurisdiction of the courts of that state all actions for damages on account of death, a different question would be presented. But that is fnot what Ohio has assumed to do. As al-

ready .shown, it allows suits for damages like the present one, where the death oc¬ curred in another state, provided the de¬ ceased was a citizen of Ohio, but prohibits them where he was a citizen of some other state. The final judgment in this case therefore denies a fundamental right in¬ hering in citizenship, and protected by §

2 of article 4 of the Constitution. The Con¬ stitution is the supreme law of the land.

But it would not be supreme if any right given by it could be overridden either by state enactment or by judicial decision. In Higgins v. Central New England & W. R.

Co. 155 Mass. 176, 180, 31 Am. St. Rep!

544, 547, ,29 N. E. 534, 535, the supreme judicial court of Massachusetts, after re-

207 U. S.

HUNTEB V. PlTTSBUBGH.

159-161

ferring to transitory causes of action which did not exist at common law, but were created by the statute of another state and passed to the administrator of the de¬ ceased, said : “When an action is brought upon it here, the plaintiff is not met by any difficulty upon these points. Whether our courts will entertain it depends upon the general principles which are to be ap¬ plied in determining the question whether actions founded upon the laws of other states shall be heard here. These prin¬ ciples require that, in cases of other than penal actions, the foreign law, if not con¬ trary to our public policy, or to abstract justice or pure morals, or calculated to in¬ jure the state or its citizens, shall be recog¬ nized and enforced here, if we have juris¬ diction of all necessary parties, and if we can see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the par¬ ties.” The statute of Pennsylvania which gave the plaintiff, as widow of the deceased, a right to sue for damages, does not offend natural justice or good morals, nor is it calculated to injure the citizens of any state, not even those of Ohio, nor can it be said to offend any policy of that state which has been made applicable equally to its own citizens and citizens of other states. The case is plainly one in which Ohio at¬ tempts, in reference to certain kinds of ac¬ tions that are maintainable in perhaps every state of the Union, including Ohio, to give to its own citizens privileges which it [ 1 6 0]denies, under like circumstances, *to citizens of other states. To a citizen of Ohio it says: “If you go into Pennsylvania, and are killed while there, in consequence of the negligence or default of someone, your widow may have access to the Ohio courts in a suit for damages, provided the wrong¬ doer can be reached in Ohio by service of process.” But to the citizen of Pennsylva¬ nia it says: “If .you come to your death in that state by reason of the negligence or default of someone, even if the wrongdoer be a citizen of Ohio, your widow shall not sue the Ohio wrongdoer in an Ohio court for damages, because, and only because, you are a citizen of another state.” This is an illegal discrimination against living citizens of other states, and the difficulty is not met by the suggestion that no discrimi¬ nation is made against the widow of the deceased because of her citizenship in an¬ other state. The statute of Pennsylvania in question had in view the protection of persons, while alive, against negligence or default causing death. It must have had that object in view. I submit that no state can authorize its courts to deny or dis¬ regard the constitutional guaranty that the 52 U. ed.

citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states.

With entire respect for the views of oth¬ ers, I am constrained to say that, in my opinion, so much of the local law, whether statutory or otherwise, as permits suits of this kind for damages where the deceased was a citizen of Ohio, but forbids such suits where the deceased was not a citizen of Ohio, is unconstitutional. The judgment under review should be reversed.

*D. HUNTER, JR., Robert K. Cochrane, [ 1 6 1]

John A. Sauer, Herman W. Heckleman,