The holding in Davis v. Farmers Co-Op. Equity Co. 262 U.S. 312,43 Sup. Ct. 556, 67 L. ed. 996, is, in my opinion, decisive of this case. While the opinion in that case states specifically that the carrier neither owned nor operated a railroad within the state, it is manifest that the basic reason for the decision is undue interference with, and unreasonable burden upon, interstate commerce. Such is the interpretation given that decision by state courts. In Iron City Produce Co. v. Am. Ry. Exp. Co.153 N.E. 316, the court of appeals of Ohio says that the Ohio statute, authorizing service of process on a managing agent of a foreign corporation within the state, is held repugnant to the commerce clause of the federal constitution (article 1, § 8, subd. 3) in so far as it permits suits by nonresidents against foreign interstate carriers on causes of action arising and originating in transactions had outside the state. The fact that the carrier is operating within the state (as it undoubtedly was) is disregarded. The fact that it was a suit against a foreign carrier, engaged in interstate commerce, upon a cause of action arising outside the state, growing out of a transaction not within the state and by a plaintiff not a resident of the state, was held sufficient to require the application of the rule announced in the Davis case.
We can conceive of no good reason why the trial in Minnesota of a crossing case, for instance against the Milwaukee road, arising in the state of Washington, in favor of a resident of that state, is *Page 96 any less an interference with, and burden upon the interstate operations of that road, than is the trial in Minnesota of a loss and damage claim arising in Kansas in favor of a resident of that state against the Santa Fe railroad. The decision in the Davis case, followed in the Wells case, 265 U.S. 101, 44 Sup. Ct. 469,68 L. ed. 928, is leveled directly at the practice of imposing upon interstate carriers the expense and loss incident to the trial, in states remote from that in which the cause of action arose, of questions of liability which they deem advisable to submit to the determination of the courts. The meaning of the language used in that case [262 U.S. 315] is unmistakable.
"That litigation in states and jurisdictions remote from that in which the cause of action arose entails absence of employees from their customary occupations; and that this impairs efficiency in operation, and causes, directly and indirectly, heavy expense to the carriers; these are matters of common knowledge. Facts, of which we, also, take judicial notice, indicate that the burden upon interstate carriers imposed specifically by the statute here assailed is a heavy one; and that the resulting obstruction to commerce must be serious. During federal control absences of employees incident to such litigation were found, by the Director General, to interfere so much with the physical operation of the railroads, that he issued General Order No. 18 (and 18A) which required suit to be brought in the county or district where the cause of action arose or where the plaintiff resided at the time it accrued. That order was held reasonable and valid in Alabama Vicksburg Ry. Co. v. Journey, 257 U.S. 111 [42 Sup. Ct. 6, 66 L. ed. 154]. The facts recited in the order, to justify its issue, are of general application, in time of peace as well as of war. * * * The public and the carriers are alike interested in maintaining adequate, uninterrupted transportation service at reasonable cost. This common interest is emphasized by Transportation Act, 1920, which authorizes rate increases necessary to ensure to carriers efficiently operated a fair return on property devoted to the public use. See Railroad Commission of Wisconsin v. Chicago, Burlington Quincy R.R. Co. 257 U.S. 563 [42 Sup. Ct. 232, *Page 97 66 L. ed. 371, 22 A.L.R. 1086]; New England Divisions Case,261 U.S. 184 [43 Sup. Ct. 270, 67 L. ed. 605]. Avoidance of waste, in interstate transportation, as well as maintenance of service, has become a direct concern of the public. With these ends the Minnesota statute, as here applied, unduly interferes. By requiring from interstate carriers general submission to suit, it unreasonably obstructs, and unduly burdens, interstate commerce."
This language of the Supreme Court, in my judgment, is sufficient to cover G.S. 1923, §§ 7493, 9231 and 9233, in so far as those sections permit suits by nonresidents against interstate foreign carriers on causes of action arising outside of the state and originating in transactions not within the state. In so holding, we are not overruling the Schendel case, 156 Minn. 380,194 N.W. 780. That case arose under the federal employers liability act. The question there was a federal one — here it is not.
By section 6 of the amendment of April 5, 1910, to the federal employers act, a right created in an employe by congressional act was made enforceable in any district where the employer might be doing business at the time of commencing the action, and the jurisdiction of the federal courts was made concurrent with that of the courts of the several states, and no case arising under that act, brought in a state court of competent jurisdiction, may be removed to the federal court. Such being the declaration of congress, and no express legislative act of the state having withheld jurisdiction of actions by nonresident employes upon causes of action arising outside the state, we recognized the right of the employe to enforce his claim where jurisdiction of the cause and the parties had been obtained. If it be said that entertaining such suits unduly burdens interstate commerce, the answer is that congress may, if it chooses, so burden interstate commerce, while the states may not. It was therefore said in the Schendel case that there was a right in the suitor and a corresponding duty in the court.
In the case at bar, there is no such right in the suitor and consequently no corresponding duty in the court. The whole question rests solely upon the commerce clause of the federal constitution. *Page 98 It does not involve the question of citizenship, except as to the non-residence of the plaintiff, and the fact that he may have orderly and efficient administration of justice in the state of his residence and in the state where the cause of action arose is incidental to the matter of the reasonableness of entertaining his suit here. Whether the same limitation should apply to resident citizens of our own state, where their causes of action arise at points remote from the state, out of transaction not had within the state, and whether such limitation shall apply to any action under the federal employers liability act are matters for the consideration of the state legislature. In the instant case, the defendant is subject to service in the county in Illinois where the accident occurred and where plaintiff resides.