If it be the duty of Minnesota courts to try these imported cases, however devious the route over which they come or however distant the state of origin, the duty must exist by reason of Minnesota's being one of the United States and so subject to their constitution; or it must be found in that principle of the common law known as comity. There being no effort in the opinion of the majority to put the supposed duty upon any foundation of recognized legal and stated principle, I must examine the result from the standpoint of both (1) constitutional law and (2) comity.
1. I agree with the first and second propositions of the opinion. I agree also that this court has long and consistently held it to be *Page 63 the duty of Minnesota courts to try cases between citizens and residents of other states on transitory causes of action. But in so holding we have applied no law peculiar to Minnesota. We have resorted only to that of the federal constitution as we understood it to have been interpreted by the Supreme Court of the United States. State ex rel. Prall v. District Court,126 Minn. 501, 505, 148 N.W. 463, Ann. Cas. 1915D, 198, is typical. The refusal of the district court to retain jurisdiction of a case "imported" from Iowa was held a violation of the equal privileges and immunities clause (art. 4, § 2) of the constitution. There was no other ground for the decision. "The one case cited" (Chambers v. B. O. R. Co. 207 U.S. 142,28 S. Ct. 34, 52 L. ed. 143) "from the court of final authority, concisely determines the question," says the opinion. This court has attempted to apply in this field only federal law as determined by the one tribunal competent finally to say what that law is. So, if now we should find that our long entertained notion of the applicable federal law is mistaken, or if the Supreme Court of the United States has definitely announced a new and different rule, we should not stubbornly adhere to our former opinion. The subject matter is of federal cognizance. Therefore the conclusion of the Supreme Court of the United States should control.
Just what was decided by Douglas v. N.Y. N.H. H. R. Co.279 U.S. 377, 49 S. Ct. 355, 73 L. ed. 747? It affirmed a judgment of the New York court dismissing an action under the federal employers liability act brought by a nonresident of New York against a foreign railway corporation doing business and having trackage in New York. In support of that concrete result Mr. Justice Holmes put these abstract propositions [279 U.S. 387]:
(1) So long as there is no discrimination between citizens as such, "a distinction of privileges according to residence may be based upon rational considerations and has been upheld by this court, emphasizing the difference between citizenship and residence"; and (2) the employers liability act "does not purport to require state courts to entertain suits arising under it, but only to *Page 64 empower them to do so, so far as the authority of the United States is concerned. * * * There is nothing in the act of congress that purports to force a duty upon such [state] courts as against an otherwise valid excuse."
The district court has jurisdiction — no one questions it. The only thing now involved is its power to dismiss by reason of wrong venue rather than absence of jurisdiction. The decision in the Douglas case is that the supreme court of New York has that power. Wholly immaterial is the source of the power — whether in common law, statute or constitution. The important thing is not where the power comes from, but whether it exists. There is no word in any decision of the New York courts, so far as they have been brought to our attention, to indicate that their discretionary power to dismiss comes from any statute or that any statute has anything whatever to do with it.
All else aside, any attempt to distinguish the New York cases by invoking some statute merely as the source of the power must ignore the fact that now, under the constitution of Minnesota,our district court has all the power that could be given it bystatute. Its powers "are neither defined nor restricted by the constitution; nor does its original jurisdiction depend in any degree upon legislative action." Agin v. Heyward, 6 Minn. 53,57 (110). Being a court of "superior jurisdiction," it has "all the power that any court has" within the scope of its jurisdiction. Stahl v. Mitchell, 41 Minn. 325, 332,43 N.W. 385. Hanford v. Village of Alden, 122 Minn. 149, 142 N.W. 15. Having, in any case properly before it, "all the power that any court has," how can we deny it the power to dismiss on the ground of "forum non conveniens"?
This court has never denied the existence of that power. So far as I know, it has never before even considered it. That is why in Winders v. Illinois Cent. R. Co. 177 Minn. 1, 9,223 N.W. 291, 226 N.W. 213, I insisted that the question was an "open one" with us. In all our previous cases (other than those dealing with questions of comity, e. g. Herrick v. M. St. L. Ry. Co. 31 Minn. 11, 16 N.W. 413, 47 Am. R. 771) the "basis ofthe decision" has been "the *Page 65 privileges and immunities clause, requiring the same treatment of a suitor, citizen of another state, as is accorded to a suitor, citizen of this state." (Italics mine.) State ex rel. Bossung v. District Court, 140 Minn. 494, 497, 168 N.W. 589,590, 1 A.L.R. 145. We have dealt with the question as one solely of federal law. Inasmuch as the precise issue, the power of the district court to dismiss on the ground of forum non conveniens, has never before been presented to this court, to say nothing of having been decided, I have difficulty in seeing just how our decision law is that the power does not exist.
2. Of course, no act of congress is foreign to Minnesota. The federal employers liability act is just as effective within our boundaries and in that sense just as local as an act of our own legislature. But we are not now considering the effect of that law. Nor are we concerned with the nature of the right of action it confers upon plaintiff. The only issue is in substance one of venue — has plaintiff a right to compel a Minnesota court to try his transitory cause of action, or may that court dismiss it upon grounds of convenience and because the proper forum is elsewhere? Although plaintiff's right comes from an act of congress it remains the cause of action of a nonresident originating on foreign territory. There is no constitutional duty resting upon us to try his case here; his right of access to our courts, if it exists, must be found in comity. The constitutional basis being eliminated by the Douglas case, there can be no other save comity.
While for all national purposes "the States and the citizens thereof are one," yet "in all other respects, the States are necessarily foreign to and independent of each other." Hanley v. Donoghue, 116 U.S. 1, 4, 6 S. Ct. 242, 244, 29 L. ed. 535; 5 R.C.L. 908; Davis v. M. St. P. S. S. M. Ry. Co. 134 Minn. 455,159 N.W. 1084. Except for constitutional obligations, "there can be no valid distinction in the relation which exists between the several states of the United States and between a state and a foreign nation." Renlund v. Commodore Min. Co.89 Minn. 41, 46, 93 N.W. 1057, 1059, 99 A.S.R. 534; Emery v. Berry, 28 N.H. 473, 486, 61 Am. D. 622. *Page 66
It follows that, save for the duties imposed by the constitution, we may deal with residents of other states precisely as we would if they were residents of the most remote of foreign nations. We could by comity, that is as matter of grace, of interstate or international courtesy and reciprocity (2 Wd. Phr. [1 ser.] 1279; 5 R.C.L. 910) try their cases — all of them in which local jurisdiction of the defendants could be acquired. Or, with equal right, we could decline to exercise our jurisdiction on the ground of forum non conveniens, as the supreme court of Michigan said should have been done in G. W. Ry. Co. v. Miller, 19 Mich. 305; as is done in Ohio, Loftus v. Pennsylvania R. Co. 107 Ohio St. 352,140 N.E. 94; as the supreme court of Vermont suggested might have been done in Morrisette v. C. P. Ry. Co. 76 Vt. 267,56 A. 1102, and as has been done repeatedly in other states. Annotation, 32 A.L.R. 6, 33. Dismissal upon the ground of forum non conveniens is conventional practice in the English courts. 32 A.L.R. 39.
It seems to me that the decision in Davis v. Pierse, 7 Minn. 1,3 (13), 82 Am. D. 65, confirms the views I am attempting to set forth. The case was decided during the civil war and involved a statute passed during that conflict, the intended effect of which was to suspend "the privilege of all persons aiding the rebellion * * * of prosecuting and defending actions and judicial proceedings in this state." It was held in contravention of both state and federal constitutions. But in reaching that decision, art. 1, § 8, of the state constitution, declaring every person entitled to a certain remedy in the laws and to obtain justice promptly and without delay, was construed as "intended for the benefit of, and * * * limited in its application to, the people of the state, or at most to such persons as are within its limits and subject to its laws." "All others," the court continued, "might be denied the privilege of our courts without depriving them of an absolute right. Even the citizens of other of the United States could not demand this privilege as a right, were it not" for the equal privileges and immunities clause in the constitution of the United States. And as applied to the citizen of another state the basis of the decision was *Page 67 then, as it has been ever since until the instant case, that the federal constitutional mandate prevented our making any discrimination against nonresidents who happened to be citizens of other states. "The constitution of the United States," it was then said, as it has been said in substance repeatedly since, "seems to settle this question at once."
In Herrick v. M. St. L. Ry. Co. 31 Minn. 11, 16 N.W. 413,47 Am. R. 771, and Powell v. G. N. Ry. Co. 102 Minn. 448,113 N.W. 1017 (Endres v. First Nat. Bank, 66 Minn. 257,68 N.W. 1092, affirms jurisdiction, nothing more, of a right given by act of congress) the law was held to be that our district court has power to try tort actions for nonresidents to enforce rights given by statutes of other states. No one now denies that power. In the Herrick case, 31 Minn. 11, 16 N.W. 413,47 Am. R. 771, there had been a dismissal on the ground of assumed lack of jurisdiction. That was plainly wrong, so reversal followed as matter of course. In the Powell case, 102 Minn. 448,113 N.W. 1017, the district court in the exercise of its unquestionable jurisdiction tried the case. There was a verdict, no error, and affirmance followed as matter of course. True, both decisions are put on the ground of comity. But comity, while always implying jurisdiction, always as plainly negatives any inescapable duty to exercise it.
Speaking of statutes, we have one (simply declaratory of common law power — G. S. 1923 [2 Mason, 1927] § 9322) to the effect that the district court may dismiss for "sufficient cause shown." What is sufficient cause is a judicial question. That in such a case as this, the foreign origin of the cause of action and nonresidence of the plaintiff constitute sufficient cause has been established for us. Without denying the correctness of that view, it is now asserted that Minnesota has not the power its own statute says it has to dismiss an action for one "sufficient cause shown." Just when and how did it lose that power? How comes it that Minnesota has not the same "excuse" (i. e. power) of declining to try imported cases as New York has? Is not the state sovereignty of Minnesota as complete, its judicial power as ample, as that of *Page 68 New York? And has not our district court all the power to dismiss for cause that any court has? Does not the constitution of the United States operate upon Minnesota as considerately as upon New York, and are not the principles of private international law "part of our law" (Hilton v. Guyot,159 U.S. 113, 163, 16 S. Ct. 139, 40 L. ed. 95) with the same effect on Minnesota as on New York?
The result achieved by the majority opinion seems to be due to an application of the rule of stare decisis. Several decisions of this court are referred to as establishing the supposed rule of decision law that is being applied. Just what the rule is, or why it is, or how it should be classified as a principle of law is not stated. There is no statute and, I respectfully insist, there is no other law of this state, which justifies the result. That is because, in no one of the decisions cited nor in any of this state that I have been able to find, was the judicial power to dismiss upon the ground now asserted in issue or its existence or nonexistence for decision. In order to make a judicial decision binding under the rule of stare decisis in a subsequent case, "there must have been an application of the judicial mind to the precise question necessary to be determined to fix the rights of the parties and decide" the point "in contestation." Carroll v. Carroll, 16 How. 275, 287, 14 L. ed. 936. The reports of this court may, I believe, be searched in vain for any decision previous to this one wherein there was any "application of the judicial mind to the precise question" now before us. If that is so, we have no precedent for the judgment that is being pronounced in this case.
The only right now involved is not the fundamental and unquestioned right of a resident of Kansas to sue, but his supposed right to sue in a state not that of his residence, in this case Minnesota. It is now settled that no such right is given by American constitutional law. Certainly it is not given by any other. Not only is there no such right, but there is positive "injustice" in "permitting a perambulating suitor * * * to scan a list of the judges in the United States until he finds one believed to have an attentive ear and then to drag all interested into his tribunal." *Page 69 Lefebvre-Armistead Co. v. Southern P. Co. 142 Va. 800, 805,128 S.E. 244, 245. Very apt indeed is the observation of Mr. Justice Holmes [279 U.S. 387] that "there are manifest reasons for preferring residents in access to often overcrowded courts, both in convenience and in the fact that broadly speaking it is they who pay for maintaining the courts concerned."
As was said in Ohio:
"The courts of our state are maintained at considerable expense, and only a small fraction of such expense [in Minnesota almost none of it] is charged to litigants, the major portion being met by taxes and levied upon the property of the state. The constitutional mandate that all courts shall be open does not require that the burdens of taxation in a single state shall be further increased to provide remedies by judicial process for those who for reasons of their own prefer to reside in other states." Loftus v. Pennsylvania R. Co. 107 Ohio St. 352,369, 140 N.E. 94, 99.
In other words, local taxpayers have some fundamental rights.
There is yet another objection to the result. The sovereign character of state action, the independence of state authority, within the field of state government, have been considered a chief distinction and pride of our federal system. There are those who regret the extent to which federal power is overshadowing that of the states, who are alarmed by the facility with which state autonomy is being restricted and the reach of the federal government extended in proportion. Assuming, as some believe, that the evolution is desirable, it has been going on fast enough without any voluntary abdications of power by the states. The majority opinion seems to me an unnecessary surrender of a part of the judicial power of Minnesota. My views prevent my joining in the capitulation.
Finally, and on another matter not explicitly presented now by record or argument, but exuding nevertheless all over the case, I am constrained again, and upon the grounds I urged in the Winders case, 177 Minn. 1, 223 N.W. 291, 226 N.W. 213, to express disapproval of the continued failure of this court to take the steps necessary to put an end to the champertous solicitation of litigation *Page 70 of this or any other kind. That intolerable practices are resorted to and intolerable burdens imposed on Minnesota courts and taxpayers is known to everybody. The situation has been noted by the Supreme Court of the United States (Davis v. Farmers Co-op. Eq. Co. 262 U.S. 312, 43 S. Ct. 556,67 L. ed. 996) and has received decidedly adverse comment more recently from the supreme court of Wisconsin. C. M. St. P. P. R. Co. v. Wolf, 199 Wis. 278, 226 N.W. 297.
For the reasons above stated I consider that the courts of Minnesota are under no self-imposed disability which prevents their dismissal of a case for good cause; that such a cause was presented below; that the district court had the discretion to dismiss for the nonresidence of the plaintiff; that there was no abuse of it and that in consequence the judgment should be affirmed.