(concurring in the result).
I concur that the defendant’s showing was not sufficient under the doctrine of forum non conveniens to sustain a dismissal. Though that holding disposes of this case since many other problems are discussed and determined in the prevailing opinion, I feel called upon at this time to express my disagreement with some of them.
I think that to dismiss a Federal Employers’ Liability Act suit on the ground of forum non conveniens changes a long established policy of this state which policy carried out the policy of Congress in that act.
Our constitution and statutes expressly give the district court of the third judicial district jurisdiction and venue of this case and the defendant was properly served with summons. Article 8, Sections 5 and 7, Constitution of Utah; 20 — 3—4, U. C. A. 1943; Section 104 — 4—5, 6 and 7, U. C. A. 1943; and Section 104 — 5—11, U. C. A. 1943. The provision of Section 104 — 4—9, U. C. A. 1943, requiring the court to change the place of trial from one county to another when “the convenience of witnesses and the ends of justice would be promoted” does not authorize a dismissal of the *346action when the trial in another state would be more convenient.
Though I find no express decision thereon, cases presenting this problem have been constantly before this court since prior to statehood. See Seley v. Southern Pacific Co., 1890, 6 Utah 319, 23 P. 751. Appellant in his brief cites at least fifty such cases and there have been many others, among them some are cited hereinafter. Also, there have been many such cases determined finally in the district courts. During this time the business of the second judicial district (including Ogden) and third judicial district (including Salt Lake City) has been constantly increasing and the number of judges have been doubled.
The railroads, though never raising this objection, have gone to great lengths to defeat and discourage this kind of litigation. In early days the weapon was the claim of champerty between attorney and client. In Croco v. O. S. L. R. Co., 1898, 18 Utah 311, 54 P. 985, 44 L. R. A. 285; Alfred H. Nelson v. Southern Pacific Railway Co., 15 Utah 325, 49 P. 644, Id., 18 Utah 244, 55 P. 364; Saunders v. Southern Pacific Railroad Co., 13 Utah 275, 44 P. 932, Id., 15 Utah 334, 49 P. 646; and Kennedy v. Oregon Shortline R. Co., 18 Utah 325, 54 P. 988, champerty between the attorney and plaintiff was unsuccessfully urged as a defense to any recovery . In Nelson v. Evans, 1900, 21 Utah 202, 60 P. 557, the railroad’s attorneys prosecuted an action to require the attorneys who successfully prosecuted the case of Nelson v. Southern Pacific R. Co., supra, to divide their fees with a brother of the deceased; and in In re Evans, 1900, 22 Utah 366, 62 P. 913, 53 L. R. A. 952, 83 Am. St. Rep. 794, the same attorneys prosecuted disbarment proceedings against the attorneys Evans & Rogers, on the ground of champerty in the Nelson Case, supra, and they were found guilty of the charge and paid a specified sum to the widow of the deceased in that case to avoid béing disbarred from practicing law *347in this state. But twelve years later this matter was reconsidered by this court and the attorneys were exonerated from the charge of champerty and the disbarment judgment set aside and vacated on the grounds that it was obviously erroneous and void on its face. In re Evans, 1912, 42 Utah 282, 130 P. 217. This latter case discloses that in the Kennedy case, supra, the railroad’s attorney secretly made a settlement with the plantiff, widow of the deceased, for whose accidental death that action was prosecuted, without the knowledge of her attorneys and that later that settle-men was set aside and the case tried and plaintiff recovered a substantially larger judgment than she received in the settlement. The railroad’s attorney tried to justify this unorthodox procedure on the ground that the plaintiff’s attorneys were guilty of champerty in connection with that case.
All of these cases either arose out of or were actions for the recovery of damages for accidental injuries or death which occurred out of this state by persons who were nonresidents here. As hard as the railroad’s attorneys fought these cases it is evident that had they believed that the courts had the discretionary power to dismiss them on the ground that trial in this state was inconvenient, they would have so moved the court. Their failure to raise this question is a concession that the courts had not such power.
The doctrine of forum non conveniens as applied to this kind of case is of very recent development, although the principles thereof have in isolated cases and under very different fact situations been recognized for a long time. For its history, purposes and effects see: The Doctrine of Forum Non Conveniens in Anglo-American Law, 29 Col. L. Rev. 1 (1929); Foster, The Place of Trial, 43 Har. L. Rev. 1217, (1929-30), and 44 Har. L. Rev. (1930-31) ; Forum Non Conveniens, A Federal Doctrine, 56 Yale L. J. 1234; Baucher, The Incoiivenient Federal Forum, *34860 Har. L. Rev. 908 (July 1947); Note, Limitations on Change of Federal Forum, 15 U. of Chi. L. Rev. 332 (Winter of 1948).
If the courts of this state now have such discretion our policy in this respect has been drastically changed by this decision. Usually such changes of policy are for the legislature and not for the courts to make. The legislature is better qualified to make the necessary study of this complicated problem and formulate a proper and workable rule to meet it than is this court by its common law process.
Though the defendant is a foreign corporation that fact is entitled to little weight on whether this action should be dismissed. Defendant operates an extensive railroad system within this state and is a heavy taxpayer here and so it should be entitled to the use of our courts. If it is entitled to use our courts for its own litigation, is the fact that it is incorporated in another state a reason why others should not be able to sue it here? While there is a showing of a number of F. E. L. A. cases which arose without the state pending here, there is no showing that there are more cases pending or tried in Utah which arose in other states than there are cases pending or tried in other states which arose in Utah. The extent of the inconvenience necessary to sustain a dismissal under the forum non con-veniens doctrine is a very uncertain question. Here there is a disagreement in this court thereon and in many cases the United States Supreme Court has divided as nearly even on this question as it is possible for an odd numbered court to do. In view of that fact this court may by adopting this doctrine increase its load rather than decrease it.
In adopting the statutory and constitutional provisions above cited, the legislature expressed the intention that where a court of this state, with jurisdiction of the subject matter obtains jurisdiction of the parties within *349the proper venue, it has no discretionary power to dismiss such action on the grounds of forum non conveniens. Here none of these elements are questioned. The court has jurisdiction of the subject matter, the service of process was as expressly provided for in this kind of case by statute and as the prevailing opinion points out the venue was expressly authorized. While there is no express provision that there is no discretionary power in the courts to dismiss such a case, the statutes expressly provide how and where such action may be commenced and maintained and the bench and bar have universally construed these statutes as excluding such power, so the conclusion seems unescapable that the legislature so intended. Somewhat similar statutes have been so construed in other courts. State ex rel. Foraker v. Hoffman, 309 Mo. 625, 274 S. W. 362; Bright v. Wheelock, 323 Mo. 840, 20 S. W. 2d 684, 66 A. L. R. 263; State ex rel. Southern R. Co. v. Mayfield, 359 Mo. 827, 224, S. W. 2d 105; Gregonis v. Philadelphia R. C. & I. Co. 1923, 235 N. Y. 152, 139 N. E. 223, 32 A. L. R. 1; Hagerstown B. Co. v. Gates, 1912, 117 Md. 348, 83 A. 570; Smith v. Empire State M. & D. Co., C. C., 1904, 127 F. 462. While the first cases cited involved somewhat stronger statutes than ours because these statutes are dealing directly with the kind of actions which may be instituted, not where or how they may be instituted or maintained, in the last case cited a federal court construed a Washington state process statute, no stronger than ours, to require the assumption of jurisdiction not upon grounds' of comity, but on positive statutory provisions, holding that it had no discretionary power to refuse to take cognizance of the case. The fact that the doctrine of forum non conveniens has developed since these provisions were enacted does not change the legislative intention at the time they were enacted, nor justify a different construction of the statutes enacted with such intention.
Courts have long recognized that the federal constitution *350does not require the state courts to take cognizance of all cases wherein they have jurisdiction of the parties and subject matter. Though the state courts must remain open to litigants of claims arising under federal statutes the same as to litigants of similar claims from other sources. Miles v. Illinois C. R. Co., 315 U. S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A. L. R. 1104; Mondou v. New York, N. H. & H. R. Co., 223 U. S. 1, 32 S. Ct. 169, 56 L. Ed. 327, 38 L. R. A., N. S., 44. And under Article 4 Section 2, the privileges and immunities clause of the federal constitution, the states may not deny citizens of other states the right to sue while permitting its own citizens such right. Miles v. Illinois C. R. Co., supra, McKnett v. St. Louis & S. F. R. Co., 292 U. S. 233, 54 S. Ct. 690, 78 L. Ed. 1227. But it has long been recognized that a state may bar actions in its courts by non-residents or on claims arising outside of the state, as long as it does not discriminate against citizens of other states or actions arising under federal statutes. Douglas v. New York, N. H. & H. R. Co., 1929, 279 U. S. 377, 49 S. Ct. 355, 73 L. Ed 747; Northern Canadian Railroad v. Eggen, 1920, 252 U. S. 553, 40 S. Ct. 402, 64 L. Ed. 713; Barrows Steamship Co. v. Kane, 1898, 170 U. S. 100, 18 S. Ct. 526, 42 L. Ed. 964; Baltimore & Ohio R. Co. v. Chambers, 73 Ohio St. 16, 76 N. E. 91, 11 L. R. A. N. S., 1012; Robinson v. Ocean Steam Navigation Co., 1889, 112 N. Y. 315, 19 N. E. 625, 2 L. R. A. 636. All of these cases are under express statutory provision limiting the right to maintain an action in the state courts. We have no such statutory limitations.
Further, I believe that the Federal Employers’ Liability Act, establishes not only the policy of the federal government, but that of the states. Congress is authorized to legislate on matters within the scope of its jurisdiction, not only for the federal government, but for all the states. It established not only a federal, but a state policy in allowing as it did by this act the injured employee to choose *351the forum for the suit. Miles v. Illinois C. R. Co., 315 U. S. 698, 62 S. Ct. 827, 86 L. Ed. 1129, 146 A. L. R. 1104; Baltimore & O. R. Co. v. Kepner, 314 U. S. 44, 63 S. Ct., 6, 86 L. Ed. 28, 136 A. L. R. 1222; State ex rel. Southern Ry. Co. v. Mayfield, 359 Mo. 827, 224 S. W. 2d 105; Leet v. U. P. R. Co., 25 Cal. 2d 605, 155 P. 2d 42; Boright v. Chicago R. I. & P. R. Co., 180 Minn. 52, 230 N. W. 457. In the absence of a contrary express statutory provision we should uphold this policy.
Except for Mondou v. New York, N. H. & H. R. Co., supra, reversed by the United States Supreme Court, I find no case prior to this one where a state court, absent an express statutory authority therefor has refused to take cognizance of an F. E. L. A. case coming within its jurisdiction. The New York cases relied on in the prevailing opinion and cited herein are based on an express statutory authority as stated in the Douglas case, supra. The same is true of the Ohio case of Loftus v. Pennsylvania R. Co., 1923, 107 Ohio St. 352, 140 N. E. 94, and the other cases cited from that state hereinabove, as well as of the cases from Illinois. The Illinois statute is quoted in the prevailing opinion in its extract from the Loftus case. The case relied on in the prevailing opinion, from Illinois, is not from an appellate court, but was based on previous Illinois decisions under the statute hereinabove mentioned. The New Jersey case of Anderson v. Delaware, L. & W. R. Co., 11 A. 2d 607, 18 N. J. Misc. 153, relied on in the prevailing opinion is not an F. E. L. A. case. Thus all of these F. E. L. A. cases coming from appellate courts were decided before the Douglas case, and were based on express statutory provisions.
On the other hand, the more recent F. E. L. A. cases, and all that I have found not based on express statutory authority deny the discretionary power of the state courts to dismiss such actions under the doctrine of forum non conveniens. In State v. Mayfield, 1949, 359 Mo. 827, 224 *352S. W. 2d 105, decided since the 1848 revision of Title 28 U. S. Code, and the case of Ex parte Collett, 337 U. S. 55, 69 S. Ct. 944, 93 L. Ed. 1207, 10 A. L. R. 2d 921, the Missouri Supreme Court held that under its statute and the policy established by the F. E. L. A. it was required to take cognizance of such claims of its own citizens and therefore must do the same to citizens of other states under the privileges and immunities clauses of the federal constitution. The Supreme Court of California reached a similar conclusion in Leet v. U. P. R. R. Co., 1945, 25 Cal. 2d 605, 155 P. 2d 42, as did that of Minnnesota in Botight v. Chicago R. I. & P. R., 1930, supra, on the grounds stated at the beginning of this paragraph. All of these cases have been decided since the Douglas case and fully considered it and the doctrine of forum non conveniens, but held that doctrine not applicable to F. E. L. A. cases.
Until the 1948 revision of Title 28 U. S. Code the doctrine of forum non conveniens was held to be not available to a defendant in an F. E. L. A. suit commenced in the federal courts. This, for the reason that the special venue act required that the plaintiff be allowed to choose any federal court available to him under the act. 45 U. S. C. A. § 56. Ex parte Collett, 337 U. S. 55, 69 S. Ct. 944, 93 L. Ed. 1207, 10 A. L. R. 2d 921; Gulf Oil Co. v. Gilbert, 330 U. S. 501, 67 S. Ct. 839, 91 L. Ed. 1055; B. & O. R. Co. v. Kepner, 314 U. S. 44, 62 S. Ct. 6, 86 L. Ed. 28, 136 A. L. R. 1222; Miles v. Illinois Central R. Co., 315 U. S. 698, 62 S. Ct. 827, 86 L. Ed. 1120, 146 L. R. A. 1104. Since that revision an F. E. L. A. suit commenced in a federal court may for the convenience of the parties and witnesses, in the interest of justice be transferred to any other district or division where it might have been brought. Ex parte Collett, supra. This revision does not allow a dismissal of the action in the federal court, but only a transfer thereof, thus avoiding the necessity of commencing over again and the possibility that the statute of limitations might bar the second action. *353The provision that such action commenced in the state courts may not be transferred to the federal court is unchanged, thus retaining the policy that an F. E. L. A. claimant might choose the state court where he wished to try his case.