EGGEN v. CANADIAN NORTHERN RY. CO., 255 F. 937

STONE, Circuit Judge. Writ of error from directed verdict favoring defendant in a personal injury suit. The‘errors assigned present questions of law. Plaintiff, a citizen of South Dakota, was injured on a Canadian railway. Slightly more than a year later he brought this action in Minnesota. The first inquiry is as to whether the Canadian or the Minnesota statute of limitation governs. The Canadian statute (section 306, c. 37, of the Railway Act of Canada) which is here involved requires that suits such as this shall be brought within one year.

This requirement is no part of the right to bring an action, but is purely a statute of limitation. Peszeniczny v. Canadian Northern Ry. Co., 35 Western Law Reporter, 546, 11 Western Weekly Reports, 546. Such character of statutes have no extraterritorial force. Therefore the Minnesota law, being that of the forum, governs. Two sections of the Minnesota statutes (Gen. St. Minn. 1913, § § 7701, 7709) give rise to the final inquiry.

Section 7701 is an ordinary statute of limitation of six years for personal injuries.

Section 7709 is: “When a cause of action has arisen outside of this state, and, by the laws of the place where it arose, an action thereon is there barred by lapse of time, no such action shall be maintained in this state unless the plaintiff be a citizen of the state who has owned the cause of action ever since it accrued.” The facts bring this case within

section 7709, so that if that

section is valid this action cannot be brought. Plaintiff challenges that

section as being violative of

section 2, art. 4, of the national Constitution, and of the Fourteenth Amendment thereto. It is necessary to discuss only the former. That provision is— “The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” It has been wisely seen that this provision of the Constitution is of comprehensive scope (Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed. 449; Conner v. Elliot, 18 How. 591, 593, 15 L. Ed. 497), and of deep influence in molding the Union into a compact nation (Blake v. McClung, 172 U. S. 239, 251, 19 Sup. Ct. 165, 43 L. Ed. 432; Paul v.

Virginia, 8 Wall. 168, 180, 19 L. Ed. 357; Lemmon v. People, 20 N. Y. 607). Therefore the courts have prudently refrained from attempting any hard and fast definition of its terms (Ward v. Maryland, 12 Wall. 418, 430, 20 L. Ed. 449; Conner v. Elliot, 18 How. 591, 593, 15 L. Ed. 497; McCready v. Virginia, 94 U. S. 391, 395, 24 L. Ed. 248; Blake v. McClung, 172 U. S. 239, 248, 19 Sup. Ct. 165, 43 L. Ed. 432); but there is no divergence of opinion from the view expressed in Cole v. Cunningham, 133 U. S. 107, 113, 10 Sup. Ct. 269, 271 (33 L. Ed. 538) by Mr. Chief Justice Fuller, who said: “The intention of

section 2, art. 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." (Italics ours.) Which view was emphasized by Mr. Justice Moody in Chambers v. B. & O. R. R. Co., 207 U. S. 142, 148, 149, 28 Sup. Ct. 34, 35 (52 L. Ed. 143) who said: “Tlu> 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 1he 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. * * * 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.” Ward v. Maryland, 12 Wall. 418, 430 (20 L. Ed. 449); McCready v. Virginia, 94 U. S. 391, 395, 24 L. Ed. 248; Blake v. McClung, 172 U. S. 239, 249, 19 Sup. Ct 165, 43 L. Ed. 432; Harris v. Balk, 198 U. S. 215, 223, 25 Sup. Ct. 625, 49 L. Ed. 1023, 3 Ann.

Cas. 1084; Corfield v. Coryell, 4 Wash. C. C. 371, 380, Fed. Cas. No. 3,230. We regard

section 7709 as opposed to this constitutional requirement, as it has been expounded in the above decisions, and therefore void. Defendant seeks to draw a distinction between the right to bring a suit and the continuing right to bring it. A discrimination in the right to bring a suit five years after it accrues is as much a substantial discrimination as one in bringing the suit originally. Any difference is of degree, not of kind. The case of Chemung Canal Bank v. Lowery, 93 U. S. 72, 23 L. Ed. 806, is based upon no such distinction and employs no such reasoning.

That case was decided upon the ground that there was an equitable and just ground for the discrimination in a limitation statute. Eor over 40 years this decision has been passed in silence by the Supreme Court without once being cited, that we can discover, upon this constitutional point. The later decisions above cited seem opposed to the spirit of that decision. They recognize and emphasize the great importance of this provision of the fundamental law, and the necessity of carefully preserving it from the slightest infringement.

This statute, like many other state laws resulting in discrimination between citizens of different states, may have much to commend it, but such considerations have no place in constitutional tests, nor could they weigh against the paramount object of this constitutional provision, which aims at unified nationality as opposed to confederation. The judgment is reversed.