Chambers v. Baltimore & Ohio Railroad

Mb. Justice Holmes,

concurring.

Although I dp not dissent from the reasoning of the judgment, I prefer to rest, my agreement on the proposition that if the statute cannot operate as it purports to operate it does not operate at all. I do not think that it can be presumed to mean to give to all -persons a right to sue in case the-Constitution .forbids.it; to make the more'limited grant that it attempts. Connolly v. Union Sewer Pipe Co., 184 U. S. 540, 565 . Apart from the statute-no one can maintain an action like this in Ohio. 1' may add that I do not understand that there is anything in the judgment that contradicts my opinion as to the law.

Mb. Justice Hablan (with whom concurred Mb. Justice White-and Mb. Justice McKenna)) dissenting.

The plaintiff in error, Elizabeth M. Chambers, a citizen of Pennsylvania, sought by this action against the Baltimore and *152 Ohio Railroad Company in the Common Pleas Court of Ma-honing County, Ohio, to recover- damages on account of her husband’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 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 three thousand dollars. The case was carried upon writ of error to the Circuit Court of Mahoning County and the judgment was there affirmed. That judgment of affirmance 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 unlawful violence or negligence,” is not disputed. It is equally clear that the present plaintiff’s cause of action is not local but is transitory in its nature, and, speaking generally, can be maintained in any jurisdiction where the wrongdoer may be found and be brought before the court. Dennick v. Railroad Company, 103 U. S. 11 ; Stewart v. B. & O. R. R. Co., 168 U. S. 445 .

By a statute of . Ohio (1902) in force when this action was brought, it was provided that “whenever the death of a citizen of this State has been or may be caused by a wrongful act, neglect 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 statute of such other State, territory or foreign country.” 95 O. L. 401. By a previous 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 *153 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, whereas the original section 6134a gave such right without limitation or restriction as to citizenship.” 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, by the adoption of amended section 6134a [the act of 1902], undertook and intended thereby’ to limit and restrict the right to recover 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 actually in judgment: “No action can be maintained in the courts of this State upon a cause of action for wrongful death occurring in another State, except where the- person wrongfully killed was a citizen of the State of Ohio.” 73 Ohio St. 1 .

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 damages, on account of death occurring in another State and caused by wrongful act, neglect or default, except where the person wrongfully killed was a citizen of Ohio. In that view, if two persons, one a citizen of Ohio and the other a citizen of Pennsylvania, 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 company, the courts of Ohio are closed, by its statute against any suit *154 for damages brought’ by the widow or the estate of the citizen' of Pennsylvania against the railroad company, but will be open to suit by the widow or the estate of the deceased citizen 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 Constitution, 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 constitutional 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 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 thé alternative of force.. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government! - It is one of the highest and. most essential privileges-of citizenship, and must be allowed by each State- tó the citizens of all other States to the precise extent that it is allowed to its .own citizens. Equalityóf treatment in this respect is not left to'depend upon comity between the States, but is granted and protected by the Federal Constitution. ... •. Thé 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 *155 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. 571 , 580, 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 thpir nature, fundamental, which belong, of right, to the citizens of all free governments, 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 principles 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 , 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 the citizens of those States in'the acquisition and enjoyment of property and in the pursuit of happiness.; and it secures to thém 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 ofthe United States one people as this. Indeed, without some provision of the kind removing from the citizens of each State the disabilities of' alienage in the other States, and ’giving them equality of privilege with citizens of *156 those States, the Republic would have constituted little more thfl.n a league of States; it would not have constituted the Union which now exists.”

So, in Ward v. Maryland, 12 Wall. 418, 430 , the court, after referring 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 , 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 jurisdiction.”

In Cole v. Cunningham, 133 U. S. 107, 114 , the present Chief Justice, speaking .for the court, said: “The intention of section 2 of Article IV was to confer on the citizens of the several States a general citizenship, 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. McClung, 172 U. S. 239, 256 , 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 citizens of other States may not participate except in conformity to such reasonable regulations as may be established by the State. Fok instance, a State cannot forbid citizens of other States from suing in its 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 required of a resident. Such *157 a regulation of the internal 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 ■under like circumstances. Indeed, if a citizen of Ohio should go into another State and while there mllfully, or by some wrongful act, neglect or default on his part, cause the death of some one, 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 of the statutes *158 hereinbefore referred to, and the former decisions of this court, we think it must now be held to be the recognized policy and established law of this State, that an action for wrongful death occurring in another State, will not be enforced in the courts of this State, except where the person killed was, at the time of his death, a citizen of Ohio.” It places its judgment on its statutes and judicial decisions, which it regards as together indicating the policy and law of the State, to be such as 'to preelude an action for. damages, except where the deceased was a citizen of Ohio. That exception, upon whatever basis it may be rested, must fall before 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 belonging to him under the Constitution in virtue 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 ibé “ one of the highest and most essential privileges of citizenship.” 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 consequencé/Of the negligence of others, the wrong done to the deceased 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 oí court solely because her husband was, when killed, a citizen of another State. It thus accords to the Ohio Widow of á 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 *159 not what Ohio has assumed to do. As already shown, it allows suits for damages like the present one, where the death occurred in another State, provided the deceased 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 inhering in citizenship, and protected by section 2 of Article IV of the Constitution. The Constitution is the supreme law of the land. But it would not be sunreme if any right given by it could be overridden either by state enactment' or by judicial decision. In Higgins v. Central New Eng. &c. Railroad, 155 Massachusetts, 176, 180, the Supreme Judicial Court of Massachusetts, after referring 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 deceased, 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 applied in determining the question whether actions founded upon the laws of other States shall be heard here. These'principles require that, in case of other than ‘ penal actions, the foreign law, if not contrary to our public policy, or to abstract justice or pure morals, or calculated to injure the State or its citizens, shall be recognized and enforced here, if we have jurisdiction 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 parties.” The statute of Pennsyvania which gave the plaintiff as widow of the deceased a-right to sue for damages does not offend natural justice dr 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 attempts, in reference to certain kinds of actions that are maintainable in perhaps every State of the Union, including Ohio, to give to its own citizens privileges which it denies, under like circumstances, *160 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 some one, your widow may have access to the Ohio courts in a suit for damages, provided the wrongdoer can be reached in Ohio by 'service of process.” But to the citizen of Pennsylvania it says: “If you come to your death in that State by reason of the negligence or default of some one, even if the wrongdoer he 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 discrimination is made against the widow of the deceased because of her citizenship in another 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 disregard the constitutional guaranty that the 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 others, 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.