I do not concur in the views of my learned brother writing the majority opinion in this case. I agree to the doctrine announced by the Virginia court, and the Federal court, cited and discussed in the opinion. These cases rule, and they are the only cases upon the exact point involved here, that jurisdiction cannot be acquired as to a defendant not residing within the territorial jurisdiction of the court, by a foreign attachment, in cases arising under what is familiarly known as the Carmack Amendment. Applying the doctrine of these cases, our preliminary rule in prohibition should be made absolute.
I. This is purely an action created by Federal law. This law for the first time created an absolute liability against the initial carrier. The petition in this case does not aver where the damage occurred, but it does aver that the freight was delivered in good condition to the initialGood Condition: carrier, and was damaged when delivered by thePresumption. connecting carrier. There is no allegation that the damages occurred on relator's line. In this situation the presumption is that the property remained in good condition until the last moment when it could be harmed. [Railway Co. v. Varnville Co., 237 U.S. 602.] The action is clearly one based upon the Carmack Amendment, and is therefore a right of action arising under the laws of the United States. [Wells Fargo Co. v. Cunco, 241 Fed. l.c. 727; Alabama Great Southern Ry. Co. v. American Cotton Oil Co., 229 F. 11.]
This statute not only gives the shipper an absolute right of action against the initial carrier, but it gives the inital carrier a right of action over against the particular *Page 494 carrier which permitted the damages to be done. If a Federal statute creates a right of action, and suit is brought to enforce such right, such suit arises under the law creating the right. [McGoon v. Ry. Co., 204 F. 998; Alabama Great Southern Ry. Co. v. American Cotton Oil Co., 229 F. 11.]
II. Like actions under the Federal Employer's Liability Act, suits under the Carmack Amendment can be brought in State courts, and if for less than $3,000 cannot be removed therefrom to a Federal court. Removal is prohibited by statute. [U.S. Compiled Statutes, 1918, sec. 1010.] This, however, does not change the fact that the suit is one under a Federal law. Prior to the statute (Carmack's Amendment), it is true, thatAttachment: there was a right of action against a railroad forFederal Rule. damages to goods, which were transported by the railroad. But the peculiar right of action given by this statute did not exist. We mean the absolute right to sue for, and recover against the initial carrier, the damages sustained, although the damages did not result from any personal act of the initial carrier. Under the Federal rule jurisdiction in Federal courts could not be secured by a mere attachment proceeding. The defendant had to be within the territorial jurisdiction of the court, and personal service upon the defendant is required. There must be jurisdiction over the person of the defendant before attachment can be maintained under the Federal rule. [Big Vein Coal Co. v. Read, 229 U.S. 31; Laborde v. Ubarri, 214 U.S. 173; Ex parte Railway Co., 103 U.S. 796.]
Had the suit involved here been brought in the Federal court in St. Louis, rather than the State court, as it was brought, it is clear that such Federal court could acquire no jurisdiction under the cases, supra. Has the State court in actions based upon a Federal law, more power than a Federal court in the same district? This is the interesting query.
III. We are not inclined to think that we should *Page 495 rule (as the majority opinion does rule) that the State court can obtain jurisdiction in a case of the character involved here, when the Federal court in the same city could not acquire such jurisdiction. The majority opinion says that the action is one stated under the Carmack Amendment, as we haveJurisdiction stated above, but says that the State courtof State Court: could acquire jurisdiction per force of theWhen Denied to proviso contained in the Carmack Amendment,Federal Court. which reads: "Provided, that nothing in this section shall deprive any holder of such receipt or bill of lading of any remedy or right of action which he has under existing law." It is reasoned that under previous or pre-existing Federal law, suit could be maintained against the connecting carrier for damages occasioned by it, and the amendment did not take away this right. We need not discuss this ruling by the majority, because no such case is involved here. The suit here is against an initial carrier, and for damages which under the pleadings, and inferences to be drawn from the language, were occasioned by the last connecting carrier. This right to sue the initial carrier for the damages which were occasioned by the connecting carrier was first given by the Carmack Amendment. Upon this peculiar right there was no pre-existing law, and this is the right sought to be inforced in the case involved in our proceeding.
The foregoing may be somewhat adrift from what we think is the vital question here. Can a State court acquire jurisdiction in method not tolerated by the Federal courts? It has been said that the Carmack Amendment not only creates a right, but furnishes a remedy. [Ry. Co. v. Wallace, 223 U.S. l.c. 491.] But be this as it may, we must answer the question, does the statute allow the acquisition of jurisdiction in one way by a State court, which way cannot be used by a Federal court. The proviso to the statute speaks of rights preserved, but it has been ruled that "existing laws" as used in the statute "means existing common law as understood in the Federal courts, and excludes changes effected by State *Page 496 statutes." [Lysaght v. Ry. Co., 254 Fed. l.c. 353.] Under no existing law could Federal courts acquire jurisdiction of the cause by mere attachment, without personal service. If this be the meaning of "existing law" in this statute, then the right to obtain jurisdiction of the cause and of defendant in the method used was not a right given by "existing law." The "existing law" denied this method of acquiring jurisdiction. The cases as to attachment without personal service, we have cited, supra. One other view, and we are through. Of that next.
IV. The right to sue out an attachment is a substantive right, and is not mere procedure. Especially is this true when attachment is used to obtain jurisdiction.Substantive Rights. In Butler v. Young, 1 Flippin, l.c. 279, it is said:
"Care and caution will be used, that substantive rights given by the State laws shall not be confounded with what is mere practice in the State courts. In this connection I may mention, among other matters, the right to bring an absent or non-resident defendant into court by publication, or the right to a second trial, which are not matters of mere practice, but are substantial rights conferred by the statute of the State, and, in my opinion, were not contemplated by Congress by the law in question to be given to parties in this court."
The foregoing was quoted with approval in Harland v. United Lines Tel. Co., 40 Fed. l.c. 317. The force of it is that the acquisition of jurisdiction is substantive law, and not mere procedure. If it be substantive law, then in cases arising under a Federal law, the rule of the Federal courts must govern. Wherever substantive rights are involved in such cases the Federal rule must prevail. If the acquisition of jurisdiction is not a substantive right, it would be hard to find one. It has been ruled that "the question of burden of proof is a matter of substance and not subject to control by the laws of the several states." [Ry. Co. v. Harris, 247 U.S. 367; Baker v. Schaff, 211 S.W. l.c. 104, and the cases therein *Page 497 cited.] So, too, the Federal rule as to what constitutes assumption of risk in personal injury cases is substantive law, to which the State courts must bow. [Pryor v. Williams,254 U.S. 43, and cases therein cited.]
So if the acquisition of jurisdiction by attachment is substantive law, and in view of the rulings, supra, we think it is, then the statutes or rules of the State do not control, but the Federal rule must be applied by the State court. If jurisdiction by foreign attachment is denied by Federal rule, then it must be denied by the State trying a case arising under a Federal law, notwithstanding the State rule or State statute may be different. By the Federal rule an attachment is merely an incident to the suit and personal service must be obtained. If the State court undertakes to try a case arising under a Federal law, it must follow the Federal rule in matters of substantive law.
The State court is attempting to proceed without jurisdiction, and our preliminary rule should be made absolute.