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 irrespective of their citizenship. The common law, however, was modified by a statute which, as amended, became the statute under consideration here. By this statute the courts were given jurisdiction over certain actions of this description, while the common 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 citizen of another state. So far as the parties to the litigation are concerned, the state, by its laws, made no discrimination based on citizenship, and offered precisely 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 instant when he was vivus et mortuus, and made to survive and pass to his representatives (Higgins v. Central New England & W. R. Co. 155 Mass. 176, 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 discrimination 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 privileges to Ohio citizens which it withheld from citizens of other states. But no such case is before us. The Pennsylvania statute 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 1851. Of it the Pennsylvania court said in Fink v. Garman, 40 Pa. 95:

ed to regulate a common-law right of aotion 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 given 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, action which the legislature meant to provide for by this section, but the creation of ✦ an original cause of action in favor of a surviving widow or personal representative."

This is the settled interpretation of the act. Mann v. Weiand, 81* Pa. 243; Pennsylvania R. Co. v. Bock, 93 Pa. 427; Engles's Estate, 21 Pa. Co. Ct. 299; McCafferty v. Pennsylvania R. Co. 193 Pa. 339, 74 Am. St. Rep. 690, 44 Atl. 435. It appears clearly, therefore, that the cause of action which the plaintiff sought to enforce 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 because 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 plaintiff 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 reasoning of the judgment, I prefer to rest my agreement on the proposition that if the statate it does not operate at all. I do not think ute cannot operate as it purports to oper that it can be presumed to mean to give to tution forbids it to make the more limited all persons a right to sue in case the Constigrant 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 action like this in Ohio. I may add that I do not understand that there is anything in the judgment that contradicts my opinion as to the law.

ล

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 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 $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 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. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Stewart v. Baltimore & O. 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 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 Ohio Laws, 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 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 original § 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 § 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. 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 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 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 immunitics 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

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 the 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 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 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, 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

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 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 removing from the citizens of each state the disabilities 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. 418430, 20 L. ed. 449-452, 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, 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 jurisdiction."

In Cole v. Cunningham, 133 U. S. 107114, 33 L. ed. 538-542, 10 Sup. Ct. Rep. 269-271, the present Chief Justice, speaking for the court, said: "The intention of § 2 of article 4 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, 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