The opinion
FOSTER, Justice
(dissenting).
While I wrote the opinion on the original hearing, my judgment, shared in by Justice BROWN, then was that the interpretation given section 5681, Code, was not the best, but the majority of the court did not agree with us and we concurred in the construction given it by them.
Our attention is now called to the holding that one whose claim is under the Federal Employers’ Liability Act (45 USCA §§ 51-59) must be held to stand in no different attitude in respect to his right to maintain suit in a state court than one who brings his action under the statute of a sister state, for “He may not be cast out because he is suing under the act of Congress,” and “He may not enforce his rights merely because he is suing under the act.” Murnan v. Wabash R. R. Co., 246 N. Y. 244 , 158 N. E. 508, 509 , 54 A. L. R. 1522.
It was also said by the United States Supreme Court in Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1 , 32 S. Ct. 169, 179 , 56 L. Ed. 327 , 38 L. R. A. (N. S.) 44, in respect to the right of a litigant to maintain suit in a state court upon a claim which arose under the Federal Employers’ Liability Act, “We conclude that rights arising under the act in question may be enforced, as of right, in the courts of the states when their jurisdiction, as prescribed by local laws, is adequate to the occasion,” and held further that state “courts of general jurisdiction, are empowered to take cognizance of actions to recover for personal injuries and for death, and are accustomed to exercise that jurisdiction, not only in cases where the right of action arose under the laws of that state, but also in cases where it arose in another state, under its laws, and in circumstances in which the laws of Connecticut [the state in which suit was brought, different from that in which the action arose] give no right of recovery, as where the causal negligence was that of a fellow servant,” cannot withhold its jurisdiction of an action which arose in another state under the Federal Employers’ Liability Act (45 USCA §§ 51-59). This conclusion an.d result were given effect in Walton v. Pryor, 276 Ill. 563 , 115 N. E. 2 , L. R. A. 1918E, 914.
I think it would be an unwarranted discrimination to construe our statute so as to open the doors of our state courts to torts committed in another state which exist by virtue of the common , law of that state or of statutes enacted by its Legislature, and shut the door against those which exist in that state by virtue of an act of Congress, there effective, unless the language of the law can have no other meaning.
It was said in Claflin v. Houseman, 93 U. S. 130, 137 , 23 L. Ed. 833, 838, 839 , that: “The two together [the laws of the United States and those of the state] form one system of jurisprudence, which constitutes the law of the land for the state” — cited in Mondou v. N. Y., N. H. & H. R. R. Co., supra.
Again it has been held by the same court that an enactment to which the state gives the force of law is a statute of that state though not originating in its Legislature. Williams v. Bruffy, 96 U. S. 176, 183 , 24 L. Ed. 716 ; N. O. Water-Works Co. v. La. Sugar Ref. Co., 125 U. S. 18 , 8 S. Ct. 741 , 31 L. Ed. 607 .
For those reasons I cannot accept the theory that section 5681, Code, does not here have effect.
BROWN, J., concurs in the foregoing dissent.