Fourth Supreme Judicial District of the State of Texas. The defendant in error, George A. Sowers, a citizen of Arizona, recovered judgment in the District Court of El Paso County, Texas, in the sum of $5,000, for personal injuries alleged to have been sustained by him while employed in the service of the plaintiff in error as a brakeman in the Territory of New Mexico. The judgment was affirmed by the Court of Civil Appeals. 99 S. W. Rep. 190. Subsequently leave to file a petition in error was denied by the Supreme Court of Texas, and the case was brought here by writ of error to the Court of Civil Appeals.

The defendant in error recovered because of injuries received while riding on the pilot of an engine at Gallup, New Mexico. His injuries are alleged to have been occasioned by the negligence of the railroad company in permitting its track to become soft and out of repair, permitting low joints therein, by reason of which the engine's pilot struck a frog and guard rail, and the plaintiff was injured.

We are not concerned with the questions of general law in actions of negligence which were involved in the case. The Federal question which invites our attention concerns an act of the legislature of New Mexico, passed March 11, 1903 (chapter 33, page 51, Acts of 35th Legislative Assembly of New Mexico). We give this act in full in the margin. 1

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1 Whereas, it has become customary for persons claiming damages for personal injuries received in this Territory to institute and maintain suits for the recovery thereof in other States and Territories to the increased cost and annoyance and manifest injury and oppression of the business interests of this Territory and the derogation of the dignity of the courts thereof.

Therefore, be it enacted by the Legislative Assembly of the Territory of New Mexico:

SECTION 1. Hereafter there shall be no civil liability under either the common law or any statute of this Territory on the part of any person or corporation for any personal injuries inflicted or death caused by such person or corporation in this Territory, unless the person claiming damages therefor shall within ninety days after such injuries shall have been inflicted make and serve upon the person or corporation against whom the same is claimed, and at least thirty days before commencing

It is contended by the plaintiff in error that its effect is to prescribe causes of action for personal injuries, enforceable only in

suit to recover judgment therefor, an affidavit which shall be made before some officer within this Territory who is authorized to administer oaths, in which the affiant shall state his name and address, the name of the person receiving such injuries, if such person be other than the affiant, the character and extent of such injuries in so far as the same may be known to affiant, the way or manner in which such injuries were caused in so far as the affiant has any knowledge thereof, and the names and addresses of all witnesses to the happening of the facts or any part thereof causing such injuries as may at such time be known to affiant, and unless the person so claiming such damages shall also commence an action to recover the same within one year after such injuries occur, in the District Court of this Territory in and for the county of this Terri tory where the claimant or person against whom such claim is asserted resides, or, in event such claim is asserted against a corporation, in the county in this Territory where such corporation has its principal place of business, and said suit after having been commenced shall not be dismissed by plaintiff unless by written consent of the defendant filed in the case, or for good cause shown to the court; it being hereby expressly provided and understood that such right of action is given only on the understanding that the foregoing conditions precedent are made a part of the law under which right to recover can exist for such injuries, except as herein otherwise provided.

SEC. 2. Whenever any person or corporation shall file a petition in the District Court of this Territory for the county in which said petitioner lives, or, if a corporation, in the District Court for the county in which such corporation has its principal place of business, stating in effect that such petitioner is informed and believes that some party named in such petition claims that he is entitled to damages from said petitioner for personal injuries, inflicted in this Territory upon the party named in said petition or for personal injuries inflicted upon or death caused to some other person for which such party claims to have a cause of action against said petitioner, and stating as near as may be the general character of such injuries and the manner and date said party claims they were inflicted and the place where he claims they were inflicted as near as petitioner knows or is informed as to such facts, and praying that the said party may be required to appear in said court and file therein a statement of his cause of action in the form of a complaint against said petitioner, summons shall issue out of said court and be served and returnable as other process, commanding and requiring

the District Court of the Territory of New Mexico, and not elsewhere, and that the court of Texas, in maintaining jurisdiction of

the said party named in said petition to appear in said court and file such statement in the form of a complaint against said petitioner, if he has to make, and upon such complaint being filed by such party as required, the defendant named therein may demur to or answer the same and such further pleading had as the parties may be entitled to or as may be meet and proper as in other cases of a similar character, and from thenceforward such further proceedings shall be had in such causes as in other cases and the same shall be determined upon its merits and final judgment subject, however, to appeal or writ of error, shall be rendered therein either for the petitioner named in said complaint, or for the adverse party, and if the court finds the petitioner guilty of any of the wrongs, injuries or trespasses complained of against him in said statement, such damages shall be assessed against the said petitioner as the law and the facts may require, in the same manner as though said cause had been instituted by the filing of said statement as a complaint.

In event said party complained of in said petition, after being duly served with such summons, shall fail or refuse to appear or file his said statement as required herein, judgment shall be rendered by default against him in favor of the petitioner, as in other cases, and thereupon the court shall try and determine the issues raised by such petition, including the question as to whether or not the petitioner is liable to said party on account of any of the matters or things stated in said petition in any sum of money whatsoever, and if so, in what amount, and final judgment shall be rendered in accordance with the facts and the law, and such judgment as the court may render shall be final and conclusive upon the question of the liability or non-liability of said petitioner to said party, and of the amount of the liability.

SEC. 3. It shall be unlawful for any person to institute, carry on or maintain any suit for the recovery of any such damages in any other State or Territory, and upon its being made to appear to the court in which any proceeding has been instituted in this Territory, as herein provided, that any such suit has also been commenced, or is being maintained in any other State or. Territory, contrary to the intent of this act, it shall be the duty of the court to set down for hearing and try and determine the proceeding, so pending in this Territory as expeditiously as possible, upon such short notice to the other party thereto or his attorneys as the court may direct; and for the purpose of trying the same said court shall have the power to compel the parties thereto

the case, and refusing to enforce the territorial statute, denied a Federal right guaranteed by the Constitution and statutes of the United States, requiring such faith and credit to be given in every court within the United States to the public acts, records and judicial proceedings of every other State or Territory as they have, by law, in the courts of the State or Territory from which they are taken.

It is contended that there is no jurisdiction in this court to entertain this writ of error. But we are of opinion that there is jurisdiction. The Revised Statutes of the United States, § 709, authorize this court to review final judgments in the highest court of the State in which a decision in the suit could be had, where any title, right, privilege or immunity under the Federal Constitution or under any statute of or authority exercised under the United States is specially claimed and denied.

The territorial law was specially set up in the case, and was offered in evidence at the trial, and it was held by the Texas court that it was not required to give force and effect to the territorial statute under the Constitution and laws of the United States.

The opinion of the Court of Civil Appeals of Texas shows that to plead or answer on such short day as it may determine, and in event the same is triable by jury it shall be the duty of the court, upon motion, to change the venue thereof to such county in said district as in the opinion of the court will afford an opportunity, for the most speedy hearing; but in event such action is not triable by jury then the court shall immediately proceed to try and determine the same, giving such reasonable notice as it may determine, to the parties or their attorneys at any place in the Territory which the court may designate, and witnesses may be compelled by subpoena to attend such place personally, from any part of the Territory and testify, as at present, at such time and place. The institution of any such suit in any other State or Territory shall be construed by the court as a waiver upon the part of the party so instituting the same of the right of trial by jury in the case pending in the courts of this Territory.

SEC. 4. Whenever it shall be made to appear to the District Court of this Territory for the county in which petitioner or plaintiff lives, by any petition filed under section 3 hereof, or by a supplemental petition, or by

the validity of this statute and its binding force to control the right of action asserted was considered and denied in giving judgment against the plaintiff in error. Such judgment gives this court jurisdiction of the case. Hancock National Bank v. Farnum, 176 U. S. 640; St. Louis & Iron Mt. Southern R. R. Co. v. Taylor, 210 U. S. 281, 293; American Express Co. v. Mullins, decided February 23, 1909, 212 U. S. 311.

It is contended at the outset that inasmuch as this territorial statute has been annulled by act of Congress (35 Stat. Part One, 573), that the act is void from the beginning. The organic act establishing the Territory of New Mexico provides (Compiled Laws of New Mexico, 1897, § 7, p. 43, 9 U. S. Stat. 449):

"That all laws passed by the legislative assembly and governor shall be submitted to the Congress of the United States, and if disapproved, shall be null and of no effect."

But we are not prepared to hold that the territorial law thus any original complaint filed for that purpose, that petitioner or plaintiff fears or has good reason to fear that any other person is threatening or contemplating instituting suit in some other State or Territory to recover damages against petitioner or plaintiff for personal injuries inflicted or death caused in this Territory, or that he has already instituted and is then maintaining such a suit, it shall be the duty of the court upon such bond as the court may require being given, to issue its injunction, pendente lite, restraining such suit in any court sitting in any other State or Territory, and at the final hearing, if such facts are found by the court to be true, the court shall make such injunction perpetual; and at the final hearing in all cases instituted under the provisions of section 3 hereof, the party complained of in the petition shall be perpetually enjoined from further instituting or maintaining any suit or action to recover damages by reason of any of the matters or things set up in said petition.

SEC. 5. This act shall not apply to cases in which the person or corporation against whom damages for personal injuries are claimed cannot be duly served with process in this Territory.

SEC. 6. Nothing herein contained shall be construed as in any way preventing any one in this Territory claiming to have a right of action for any such damages from compromising such claim.

SEC. 7. All acts and parts of acts and laws in conflict with this act are hereby repealed, and this act shall be in effect from and after its passage.