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The reasons which led the court to refuse leave to file the plea in this case do not appear. But it is apparent on the face of the record that there are at least two grounds on which it is possible that leave may have been denied before the Federal question was reached. The original demurrer and answer seem to have been late, as they were filed by leave of court. This plea was not offered until more than nine months after the declaration, when the case was called for trial. The circumstances are not disclosed, and it may be that the court, in its discretion, considered that it was unjust for the plaintiff to be called upon to meet a new and serious issue at the last moment. Again, the plea, although it only referred to the section of the statute upon which the first count was based, went, in terms, to the whole declaration, and prayed judgment. It clearly was bad as to the second count. In the absence of any action on the part of Congress, at least, it would not be denied that a State could regulate the conduct of local messengers when the transit by wire was over. Western Union Telegraph Co. v. James, 162 U. S. 650. It cannot be said that the second count was abandoned, for nothing of the sort appears, and the plea was offered before trial, so that the evidence was not in. If the plea was not good for all that it attempted to cover, it was bad altogether. It may be that if we were dealing with the judgment of a lower court of the United States we should think that there were sufficient grounds for looking through the form to the substance of what the pleader seems to have had most in mind, but when we are considering the action of a state court we cannot say that the local tribunal did not yield to an argument that Saunders would have deemed conclusive and that Gould or Stephen would have regarded as an end of the case. 1 Wms. Saund. 28; Gould Pl., 4th ed., $ 104.

The first assignment of error falls for the reasons that we have stated, and the second falls with it. The second is that the court erred in rendering judgment for the plaintiff. But the delay was proved and as the plea was not admitted there was nothing to show that the message went outside the State.


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Moreover the judgment was upon both counts. It is impossible to go further, and to pass upon the delicate question of constitutional law that was argued here.

Writ of error dismissed.





No. 64. Argued January 8, 1909.--Decided March 1, 1909.

Where the opinion of the state court shows that it considered and de

nied the validity of a statute of another State, and its binding force to control the right of action asserted, a Federal right specially set up is denied, and this court has jurisdiction to review the judgment

under $ 709, Rev. Stat. Congress has only reserved a revisory power over territorial legislation,

and a statute duly enacted, and within the legislative power of the Territory, remains in full force until Congress annuls it by exerting

such power. Miner's Bank v. Iowa, 12 Howard, 1, 8. Under the provisions of the Constitution which declare the supremacy

of the National Government, Congress has power to enact, as it has done by 88 905, 906, Rev. Stat., that the same faith and credit be given in the courts of the States and Territories to public acts, records, and judicial proceedings of the Territories as are given to those of the States under Art. IV, § 1, of the Constitution. Embry v. Palmer, 107

U. S. 3. The passage of a legislative act of a Territory is the exercise of authority

under the United States. McLean v. Railroad Co., 203 U. S. 38, 47. Where Congress confers on a Territory legislative power extending to

all rightful subjects of legislation the Territory has authority to legislate concerning personal injuries and rights of action relating thereto; and so held in regard to the legislative power of New Mexico under

act of Sept. 9, 1850, c. 49, 9 Stat. 446. Actions for personal injuries are transitory and maintainable wherever

a court may be found that has jurisdiction of the parties and the sub

Argument for Plaintiff in Error.

213 U.S.

ject-matter, Dennick v. Railroad Co., 103 U. S. 11, and although in such an action the law of the place governs in enforcing the right, the action may be sustained in another jurisdiction when not inconsistent with any local policy. Stewart v. Baltimore & Ohio R. R. 168

U. S. 445. No State or Territory can pass laws having force or effect over persons

or property beyond its jurisdiction. A court that only permits a recovery on a cause of action on plaintiff's

showing compliance with the conditions imposed by a statute of the Territory in which the cause arose has given to that statute the observance required under $ 906, Rev. Stat., and if the action is one otherwise controlled by common-law principles its jurisdiction is not defeated because such statute requires actions of that nature to be

brought in the courts of the Territory. An action for personal injuries sustained in New Mexico may be main

tained in the courts of Texas subject to the conditions imposed by the territorial act of New Mexico of March 11, 1903, notwithstanding that act required actions of that nature to be brought in the District

Court of the Territory. 99 S. W. Rep. 190, affirmed.

The facts are stated in the opinion.

Mr. Andrew H. Culwell, with whom Mr. J. W. Terry, Mr. Gardiner Lathrop and Mr. Aldis B. Browne were on the brief, for plaintiff in error:

The statute of the Territory of New Mexico herein interposed was a valid and subsisting law at the time of the occurrences stated, and, as such, was entitled to respect and consideration in the courts of a sister jurisdiction, and the failure to so respect said statute was a violation of Art. IV, § 1, of the Constitution of the United States.

In the absence of disapproval by the Congress it must be assumed that the act in question is a valid and binding act, see Coulter v. Stafford, 56 Fed. Rep. 564; Hornbuckle v. Toombs, 18 Wall. 655; Miners' Bank v. State of Iowa, 12 How. 6, and being valid, it should have been applied in this case. Each State · has the unquestioned right to regulate the relations between employers and employés and to fix by legislative enactment the liabilities of the former for the negligence of the latter. South.

213 U.S.

Argument for Plaintiff in Error.

Pac. Co. v. Schoer, 114 Fed. Rep. 470; Buttron v. E. P. & N. E. Ry. Co., 15 Texas Court Reporter, 339.

While actions for personal injuries may be transitory, wherever determined they shall be tried according to the laws of the country wherein the act was committed; provided such laws are properly called to the attention of the court trying the case. Defendant in error had no right of action created by the laws of Texas. He secured no greater right by coming to Texas to litigate than he would have secured had he remained in New Mexico, and it was the duty of the courts of Texas to apply the laws of the Territory oi New Mexico, together with all the restrictions imposed. Swisher v. A., T. & S. F. Ry. Co., 90 Pac. Rep. 812; Pof v. New England Telephone & Telegraph Co., 55 Atl. Rep. 891; Dennis v. Atlantic Coast Line R. R., 49 S. E. Rep. 869; Rodman v. Mo. Pac. Ry. Co., 70 Pac. Rep. 642; “The Harrisburg," 119 U.S. 199; Coyne v. So. Pac. Co., 155 Fed. Rep. 683; Davis v. N. Y. & N. E. R. R. Co., 143 Massachusetts, 301; Le Forest v. Tolman, 117 Massachusetts, 109; Comnionwealth v. Metropolitan R. R., 107 Massachusetts, 236; Nonce v. R. & D. R. R. Co., 33 Fed. Rep. 435; Pendleton v. Hannibal & St. Jo. R. R. Co., 18 Pac. Rep. 57; Burns v. Grand Rapids Ry. Co., 15 N. E. Rep. 230; Slater v. Mexican Nat. R. R. Co., 194 U. S. 120.

The provision in the Constitution making it the duty of courts in one State to give full faith and credit to the decrees and legislative acts of other States is mandatory. Martin v. Pitteburg & Lake Erie R. R., 203 U. S. 284; Hancock National Bank v. Farnum, 176 U. S. 640; Great Western Tel. Co. v. Purdy, 162 U. S. 329; Banholzer v. New York Life Ins. Co., 178 U. S. 402; Cole v. Cunningham, 133 U. S. 107; Huntington v. Attrill, 146 U. S. 657.

The Territories are included in this constitutional provision. Mockey v. Coxe, 18 How. 100; Mehlin v. Ice, 56 Fed. Rep. 12; Quesenbach v. Wagner, 41 Minnesota, 108.

On the general question of full faith and credit, see Penn. R. R. Co. v. Hughes, 191 U. S. 477; Baltimore & Potomac R. R. v. Hopkins, 130 U. S. 210.

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Mr. Harry Peyton, with whom Mr. William H. Robeson and Mr. George E. Wallace were on the brief, for defendant in error:

This being a transitory cause of action, and defendant in error having complied fully with the laws of New Mexico by giving the statutory notice, the courts of the State of Texas had the right to determine its own jurisdiction and that right is not subject to revision by this court. A., T. & S. F. Ry. Co. v. Sowers, 99 $. W. Rep. 192; Chambers v. B. &0. R. R. Co., 207 U. S. 142; St. Louis, 1. M. & S. R. Co. v. Taylor, 210 U. S. 281.

The act of the Territory of New Mexico in question, having been submitted to the Congress of the United States and by it disapproved, said act is now and has been since its passage, void and of no force and effect. Compiled Laws of 1897, pp. 43-48; 35 Stat. L., Part 1, p. 573.

That portion of the territorial law, which attempts to make it unlawful to institute or maintain a transitory cause of action outside of the Territory of New Mexico, is unconstitutional and in violation of g 2, Art. IV, of the United States Constitution, as it deprives plaintiff, and all other persons affected by said act, of privileges and immunities guaranteed by the Constitution of the United States and the law of the land. Cole v. Cunningham, 133 U. S. 107; Willis v. Mo. Pac., 61 Texas, 432; Blake v. McClung, 172 U. S. 239, 256; Chambers v. B. & 0. Ry. Co., 207 U.S. 142.

That portion of the New Mexico statute which requires suits to be brought in the District Court of the Territory, to the exclusion of the Federal courts, and also to the exclusion of the minor courts, discriminates not only against the courts of other States and Territories, but against the Federal courts themselves, and it is therefore unconstitutional and void. The Coyne Case, 155 Fed. Rep. 684; Ry. Co. v. Gutierre, 111 S. W. Rep. 159.

MR. JUSTICE Day delivered the opinion of the court.

This is a writ of error to the Court of Civil Appeals for the

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