Argument for Plaintiffs in Error.

221 U.S.

Mr. Maxwell Evarts, with whom Mr. H. M. Garwood and Mr. A. L. Jackson were on the brief, for plaintiffs in

error:

The immunity provision in § 17 of the incorporating act of the Louisiana Western Railroad Company was specially set up by plaintiffs in error as a valid public act of the State of Louisiana, and the decisions of the state courts of Texas were adverse to this contention and necessarily failed to give full faith and credit to that portion of a public act, within the meaning of the Constitution of the United States.

The refusal to consider a controlling Federal question is equivalent to a decision against the Federal right involved. Des Moines Nav. Co. v. Iowa Homestead Co.,

123 U. S. 552.

The state court by its decision necessarily adjudicated the defense which was claimed under the state act. El Paso & N. E. Ry. Co. v. Gutierrez, 215 U. S. 90; Wabash Railroad v. Adelbert College, 208 U. S. 38, 44; A., T. & S. F. Ry. Co. v. Sowers, 213 U. S. 55; Land & Water Co. v. San Jose Ranch Co., 189 U. S. 179; Philadelphia Fire Assn. v. New York, 119 U. S. 110, 139; Murdock v. Memphis, 20 Wall. 590; Mallett v. North Carolina, 181 U. S. 588.

The immunity provision contained in § 17 was a contract within the meaning of the impairment clause of the Constitution. Pennsylvania Railroad Co. v. Miller, 132 U. S. 75; Southwestern Railroad Co. v. Paulk, 24 Georgia, 356; Duncan v. Pennsylvania Railroad Co., 94 Pa. St. 443.

The fact that the Texas court took cognizance of this case and undertook to apply the Louisiana statute conferring this right of action for injuries resulting in death implies the conception of that court that the Louisiana act was not in the nature of a police regulation, for the statutory right of action in Texas for injuries resulting in death awards damages only to certain designated relatives and strictly as compensation, and not upon principles

221 U. S.

Argument for Plaintiffs in Error.

of public policy. I. & G. N. Ry. Co. v. McDonald, 75 Texas, 46; Hays v. Railway Co., 46 Texas, 272; Railway Co. v. Moore, 69 Texas, 157; Railway Co. v. Garcia, 62 Texas, 292; Railway Co. v. Cowser, 57 Texas, 293; Railway Co. v. Kindred, 57 Texas, 491. Assuming that the Louisiana act did not award damages on the same principles and theory of the Texas act there would have been an insurmountable obstacle to the recognition and enforcement of the Louisiana act by the courts of Texas on principles of comity. Railway Co. v. Jackson, 89 Texas, 107; DeHarn v. Railway Co., 86 Texas, 71; Railway Co. v. McCormick, 71 Texas, 660. If the Louisiana act of 1884 was penal, it would not be transitory and therefore not enforcible in the courts of other States. Boston & Maine R. R. Co. v. Hurd, 108 Fed. Rep. 116; Higgins v. Central N. E. & W. Ry. Co., 155 Massachusetts, 176; Nelson v. Chesapeake & Ohio Ry. Co., 88 Virginia, 971.

Article 2315 of the Civil Code of Louisiana, as amended by the act of 1884, created a right of action for injuries resulting in death and by its own language made it enforcible only for the period of one year from the death.

The transition from the case in plaintiffs' petition as fixed by its allegations alone, to the case made by a declaration upon the Louisiana statutory right of action in favor of the survivors mentioned for injuries resulting in death, as claimed to be the effect of the filing of the answers of defendants more than two years after the death, involved such a departure from law to law as to amount to the institution of a new and different cause of action. Railway Co. v. Wyler, 158 U. S. 285, 298; Lumber Co. v. Water Works Co., 94 Texas, 456; Whalen v. Gordon, 95 Fed. Rep. 314; Anderson v. Wetter, 15 L. R. A. (N. S.) 1003; Boston & Maine R. R. Co. v. Hurd, 108 Fed. Rep. 116; 1 Ency. of Pl. & Pr., pp. 569, 570.

In this case the right of action in favor of the survivors under the Louisiana statute obtained for a period of one

year from the death and the right of action therefor lapsed and terminated without the commencement of an action upon it within that period, and could not thereafter exist as a right potential or enforcible anywhere. Boyd v. Clark, 8 Fed. Rep. 849; Whalen v. Gordon, 95 Fed. Rep. 319; Theroux v. Railway Co., 64 Fed. Rep. 84; Munos v. So. Pac. Co., 51 Fed. Rep. 188; The Harrisburg, 119 U. S. 199; Davis v. Mills, 194 U. S. 451, 457.

In fact there is no longer even a prima facie right of action as basis for recovery and the rule requiring the ordinary statute of limitation to be pleaded in order to avail as a defense is not called for and does not apply. 19 Am. & Eng. Ency. of Law, 2d ed., 150, 151; 13 Ency. of Pl. & Pr., 186, 187, and note 1; 25 Cyc. 1020, 1403.

The state courts having considered and adopted the Louisiana statute as the indispensable basis for the judgment and this solely through the medium of the defendant's pleading which was filed more than two years after the death, on the theory that such pleading when so filed became available as a declaration in behalf of the plaintiffs below, could not ignore the provision of that same act fixing and limiting the period of the right created without involving necessarily a refusal to give full faith and credit to the act. Des Moines Nav. Co. v. Iowa Homestead Co., 123 U. S. 552; Land & Water Co. v. San Jose Ranch Co., 189 U. S. 179-181; Philadelphia Fire Assn. v. New York, 119 U. S. 110, 129.

Mr. J. W. Parker for defendants in error.

MR. JUSTICE VAN DEVANTER delivered the opinion of the court.

In that view of it which must be accepted here, this case may be stated as follows: It was an action to recover damages for the death of a locomotive engineer, resulting

from the derailment of an engine which he was driving while in the service of two railroad companies which were jointly operating a line of railroad through the States of Louisiana and Texas. The derailment and ensuing death occurred in Louisiana, June 1, 1905, and proximately were caused by the negligence of the two companies. One of the companies was incorporated by a Louisiana statute of March 30, 1878, which contained a provision exempting the company from liability for the death of any person in its service, even if caused by its negligence. Laws of Louisiana, 1878, No. 21, § 17, p. 267. Another Louisiana statute, enacted July 10, 1884, and still in force, conferred upon designated relatives a right to recover the damages sustained by them through the death of a person negligently caused by another, but subjected the right to the limitation that the action to enforce it should be begun within one year from the death. Laws of Louisiana, 1884, No. 71, p. 94. Merrick's Revised Civil Code, Art. 2315. Within the time so prescribed the relatives so designated commenced in the District Court of Harris County, Texas, an action to recover from the two railroad companies the damages sustained by the engineer's death. The complaint, although stating all the facts essential to a recovery under the statute, was defective as a complaint in the Texas court, because it did not conform to the rule prevailing in that State that statutes of other States cannot be noticed judicially, but must be pleaded. More than a year after the death the defendants answered the complaint, and in their answers recognized the existence of the statute upon which the plaintiffs' action was founded, made allegations respecting it, and sought to enforce the one year limitation therein. At the trial the statutes of 1878 and 1884 were both duly proved, and upon all the evidence the finding and judgment were for the plaintiffs. The defendants appealed to the Court of Civil Appeals of the State, where the judgment was affirmed (128 S. W.

Rep. 1165), and then sued out this writ of error. In the trial court, and again in the Court of Civil Appeals, it was held (1) that the exempting provision in the statute of 1878 was repealed by the statute of 1884, and (2) that what appeared in the answers respecting the statute of 1884 cured the defect in the complaint and required that it be treated as an adequate and timely assertion of a right under that statute. In the assignments of error here these rulings are challenged upon the theory, which also was advanced in the state courts, that the exempting provision in the statute of 1878 was a contract and could not be repealed consistently with the contract clause of the Federal Constitution, and that, if that provision was validly repealed by the statute of 1884, the answers filed more than a year after the death could not be treated as curing the defect in the complaint without disregarding the one year limitation and thereby violating the full faith and credit clause of the Constitution.

The case is now before us on a motion to dismiss, with which is united a motion to affirm.

The doctrine that a corporate charter is a contract which the Constitution of the United States protects against impairment by subsequent state legislation is ever limited in the area of its operation by the equally well settled principle that a legislature can neither bargain away the police power nor in any wise withdraw from its successors the power to take appropriate measures to guard the safety, health and morals of all who may be within their jurisdiction. Beer Co. v. Massachusetts, 97 U. S. 25; Fertilizing Co. v. Hyde Park, Id. 659; Stone v. Mississippi, 101 U. S. 814; Douglas v. Kentucky, 168 U. S. 488. In the first of these cases it was said:

"Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the