assent to what is said upon this point in the opinion just delivered for the majority of the court. The opinion says: "In the decision of the merits of the case there are some fundamental principles which are of controlling effect. The right to sue and defend in the courts is the alternative of force. In an organized society it is the right conservative of all other rights, and lies at the foundation of orderly government. It is one of the highest and most essential privileges of citizenship, and must be allowed by each state to the citizens of all other states to the precise extent that it is allowed to its own citizens. Equality of treatment in this respect is not left to depend upon comity between the states, but is granted and protected by the Federal Constitution. The privileges which it [the state] affords to one class it must afford to the other. Any law by which privileges to begin actions in the courts are given to its own citizens and withheld from [155]the citizens of other *states is void, because in conflict with the supreme law of the land." These views are supported by the former decisions of this and other courts. In the leading case of Corfield v. Coryell, 4 Wash. C. C. 371-380, Fed. Cas. No. 3,230, Mr. Justice Washington said: "The inquiry is, What are the privileges and immunities of citizens in the several states? We feel no hesitation in confining these expressions to those privileges and immunities which are, in their nature, fundamental, which belong, of right, to the citizens of all free governments, and which have, at all times, been enjoyed by the citizens of the several states which compose this Union, from the time of their becoming free, independent, and sovereign. What these fundamental principles are it would, perhaps, be more tedious than difficult to enumerate." Among the particular privileges and immunities which are clearly to be deemed fundamental, the court in that case specifies the right "to institute and maintain actions of any kind in the courts of the state." In Paul v. Virginia, 8 Wall. 168, 180, 19 L. ed. 357, 360, the court, speaking by Mr. Justice Field, said: "It was undoubtedly the object of the clause in question [Const. art. 4, 82] to place the citizens of each state upon the same footing with citizens of other states, so far as the advantages resulting from citizenship in those states are concerned. It relieves them from the disabilities of alienage in other states; it inhibits discriminating legislation against them by other states; it gives them the right of free ingress into other states, and egress from them; it insures to them in other states the same freedom possessed by the citizens of those states in the acquisition and enjoyment of property and in the pursuit of happiness; and it secures to them in other states the equal protection of their laws. It has been justly said that no provision in the Constitution has tended so strongly to constitute the citizens of the United States one people as this. Indeed, without some provision of the kind removing from the citizens of each state the disabilities of alienage in the other states, and giving them equality of privilege with citizens of those states, the Republic would [156] have constituted little more than a league of states; it would not have constituted the Union which now exists." So, in Ward v. Maryland, 12 Wall. 418430, 20 L. ed. 449-452, the court, after referring to Corfield v. Coryell, above cited, and speaking by Mr. Justice Clifford, stated that the right "to maintain actions in the courts of the state" was fundamental, and was protected by the constitutional clause in question against state enactments that discriminated against citizens of other states. Referring to the cases just cited, and to the constitutional clause in question, Mr. Justice Miller, speaking for the court in the Slaughter-House Cases, 16 Wall. 36, 77, 21 L. ed. 394, 409, said: "Its sole purpose was to declare to the several states that whatever those rights, as you grant or establish them to your own citizens, or as you limit or qualify, or impose restrictions on their exercise, the same, neither more nor less, shall be the measure of the rights of citizens of other states within your jurisdiction." In Cole v. Cunningham, 133 U. S. 107114, 33 L. ed. 538-542, 10 Sup. Ct. Rep. 269-271, the present Chief Justice, speaking for the court, said: "The intention of 8 2 of article 4 was to confer on the citizens of the several states a general citizenship, and to communicate all the privileges and immunities which the citizens of the same state would be entitled to under the like circumstances, and this includes the right to institute actions." In the more recent case of Blake v. Mc Clung, 172 U. S. 239-256, 43 L. ed. 432-438, 19 Sup. Ct. Rep. 165-172, the court said: "We must not be understood as saying that a citizen of one state is entitled to enjoy in another staté every privilege that may be given in the latter to its own citizens. There are privileges that may be accorded by a state to its own people in which citizens of other states may not participate except in conformity to such reasonable regulations as may be established by the state. For instance, a state cannot forbid citizens of other states from suing in its courts, that right being enjoyed by its own people; but it may require a nonresident, although a citizen of another state, to give bond for costs, although such bond be not [157] required of a resident. Such a regulation of the internal affairs of a state cannot reasonably be characterized as hostile to the fundamental rights of citizens of other states. .. The Constitution forbids only such legislation affecting citizens of the respective states as will substantially or practically put a citizen of one state in a condition of alienage when he is within or when he removes to another state, or when, asserting in another state the rights that commonly appertain to those who are part of the political community known as the people of the United States, by and for whom the government of the Union was ordained and established." These cases, I think, require the reversal of the judgment of the supreme court upon the ground that it denies to the plaintiff a right secured by the Constitution of the United States. The statute of Ohio, we have seen, closes the doors of the courts of that state against the present plaintiff alone because her deceased husband was not, at the time of his death, a citizen of Ohio. Thus, every citizen of Ohio, when in another state, for whatever purpose, is accompanied by the assurance on the part of his state that its courts will be open for suit by his widow or representative if his death, while in another state, is caused by the negligence or default of another person or company. But that privilege is denied by the Ohio statute to the representative of citizens of other states meeting death under like circumstances. Indeed, if a citizen of Ohio should go into another state, and, while there, wilfully, or by some wrongful act, neglect, or default on his part, cause the death of someone, although he might be liable to a suit for damages in the state where death occurred, yet, if sued for damages in the courts of his own state, he need only plead in bar of the action in Ohio that the decedent was not, at the time of his death a citizen of Ohio. Such, it seems to me, is the operation of the statute of Ohio as it is interpreted by the court below. The supreme court of Ohio, it will be observed, does not base its judgment upon any common law of the state apart from its statutes. It says: "From a consideration | [158] of the statutes *hereinbefore referred to, and the former decisions of this court, we think it must now be held to be the recognized policy and established law of this state, that an action for wrongful death occurring in another state will not be enforced in the courts of this state, except where the person killed was, at the time of his death, a citizen of Ohio." It places its judgment on its statutes and judicial decisions, which it regards as together indicating the policy and law of the state to be such as to preclude an action for damages, except where the deceased was a citizen of Ohio. That exception, upon whatever basis it may be rested, must fall before the Constitution of the United States and be treated as a nullity. The denial to the widow or representative of Chambers of the right to sue in Ohio, upon the ground that he was not a citizen of Ohio when killed, was the denial, in every essential sense, of a fundamental privilege belonging to him under the Constitution, in virtue of his being a citizen of one of the states of the Union,-the right to sue and defend in the courts of justice, which right this court concedes to be "one of the highest and most essential privileges of citizenship." While in life Chambers enjoyed the right-and it was a most valuable right— of such protection as came from the rule established in Pennsylvania, that, in case of his death in consequence of the negligence of others, the wrong done to the deceased in his lifetime could be remedied by means of suit brought in the name and for the benefit of his widow or personal representative. But Ohio takes this right of protection from him; for the Ohio court would have taken cognizance of this action if the decedent, Chambers, had been, when killed, a citizen of Ohio, while it denies relief to his widow, and puts her out of court solely because her husband was, when killed, a citizen of another state. It thus accords to the Ohio widow of a deceased Ohio citizen a privilege which it withholds from the Pennsylvania widow of a deceased Pennsylvania citizen. If the statutes of Ohio had excluded from the jurisdiction of the courts of that state all actions for damages on account of death, a different question would be presented. But that is not what Ohio has assumed to do. As al-[159] ready shown, it allows suits for damages like the present one, where the death occurred in another state, provided the deceased was a citizen of Ohio, but prohibits them where he was a citizen of some other state. The final judgment in this case therefore denies a fundamental right inhering in citizenship, and protected by § 2 of article 4 of the Constitution. The Constitution is the supreme law of the land. But it would not be supreme if any right given by it could be overridden either by state enactment or by judicial decision. In Higgins v. Central New England & W. R. Co. 155 Mass. 176, 180, 31 Am. St. Rep. 544, 547, 29 N. E. 534, 535, the supreme judicial court of Massachusetts, after re With entire respect for the views of others, I am constrained to say that, in my opinion, so much of the local law, whether statutory or otherwise, as permits suits of this kind for damages where the deceased was a citizen of Ohio, but forbids such suits where the deceased was not a citizen of Ohio, is unconstitutional. The judgment under review should be reversed. ferring to transitory causes of action which | citizens of each state shall be entitled to did not exist at common law, but were all the privileges and immunities of citizens created by the statute of another state in the several states. and passed to the administrator of the deceased, said: "When an action is brought upon it here, the plaintiff is not met by any difficulty upon these points. Whether our courts will entertain it depends upon the general principles which are to be applied in determining the question whether actions founded upon the laws of other states shall be heard here. These principles require that, in cases of other than penal actions, the foreign law, if not contrary to our public policy, or to abstract justice or pure morals, or calculated to injure the state or its citizens, shall be recognized and enforced here, if we have jurisdiction of all necessary parties, and if we can see that, consistently with our own forms of procedure and law of trials, we can do substantial justice between the parties." The statute of Pennsylvania which gave the plaintiff, as widow of the deceased, a right to sue for damages, does not offend natural justice or good morals, nor is it calculated to injure the citizens of any state, not even those of Ohio, nor can it be said to offend any policy of that state which has been made applicable equally to its own citizens and citizens of other states. The case is plainly one in which Ohio attempts, in reference to certain kinds of actions that are maintainable in perhaps every state of the Union, including Ohio, to give to its own citizens privileges which it [160]denies, under like circumstances, *to citizens of other states. To a citizen of Ohio it says: "If you go into Pennsylvania, and are killed while there, in consequence of the negligence or default of someone, your widow may have access to the Ohio courts in a suit for damages, provided the wrong doer can be reached in Ohio by service of process." But to the citizen of Pennsylvania it says: "If you come to your death in that state by reason of the negligence or default of someone, even if the wrongdoer be a citizen of Ohio, your widow shall not sue the Ohio wrongdoer in an Ohio court for damages, because, and only because, you are a citizen of another state." This is an illegal discrimination against living citizens of other states, and the difficulty is not met by the suggestion that no discrimination is made against the widow of the deceased because of her citizenship in another state. The statute of Pennsylvania in question had in view the protection of persons, while alive, against negligence or default causing death. It must have had that object in view. I submit that no state can authorize its courts to deny or disregard the constitutional guaranty that the *D. HUNTER, JR., Robert K. Cochrane, [161] V. CITY OF PITTSBURGH. (See S. C. Reporter's ed. 161-181.) Error to state court-Federal question -color of merit. 1. Questions respecting the impairment of contract obligations and the denial of NOTE. On the necessity of color of merit in Federal question to sustain writ of error to state court-see note to Offield v. New York, N. H. & H. R. Co. 51 L. ed. U. S. 231. On the general subject of writs of error courts see notes to Martin v. Hunter, 4 On what adjudications of state courts can be brought up for review in the Supreme Court of the United States by writ of error to those courts-see note to Apex Transp. Co. v. Garbade, 62 L.R.A. 513. On what questions the Federal Supreme Court will consider in reviewing the judg ments of state courts-see note to State ex rel. Hill v. Dockery, 63 L.R.A. 571. As to state decisions and laws as rules of decision in Federal courts-see notes to Wilson v. Perrin, 11 C. C. A. 71; Hill v. Hite, 29 C. C. A. 553; Griffin v. Overman Wheel Co. 9 C. C. A. 548; Elmendorf v. Taylor, 6 L. ed. U. S. 290; Jackson ex dem. St. John v. Chew, 6 L. ed. U. S. 583; United States ex rel. Butz v. Muscatine, 19 L. ed. U. S. 490; Clark v. Graham, 5 L. ed. U. S. 334; Forepaugh v. Delaware, L. & W. R. Co. 5 L.R.A. 508; and Mitchell v. Burlington, 18 L. ed. U. S. 351. As to what constitutes due process of law -see notes to People v. O'Brien, 2 L.R.A. 255; Kuntz v. Sumption, 2 L.R.A. 655; Re Gannon, 5 L.R.A. 359; Ulman v. Baltimore, 11 L.R.A. 224; Gilman v. Tucker, 13 L.R.A. 304; Pearson v. Yewdall, 24 L. ed. U. S. 436; and Wilson v. North Carolina, 42 L. ed. U. S. 865. On the power of the legislature to annex territory to municipality-see note to State ex rel. Richards v. Cincinnati, 27 L.R.A. 737. N ERROR to the Supreme Court of the due process of law because of the additional State of Pennsylvania to review a de burden of taxation to which the citizens Courts-relation to legislative depart ment. 2. The policy, wisdom, justice, and fairness of a state statute is not subject to review or criticism by the Federal Supreme Allegheny. Affirmed. See same case below, 217 Pa. 227, 66 Atl. 348. Statement by Mr. Justice Moody: A law of the state of Pennsylvania provides for the union of cities which are contiguous or in close proximity, by the an Court. 3. The interpretation of a state Constitu- follow: tion and the conformity of an enactment of "Sec. 1. Be it enacted, etc., that wherever the state legislature to that Constitution in this commonwealth, *now or hereafter,[162 are questions solely for the consideration of the state courts, whose decision thereon concludes the Federal Supreme Court. Constitutional law - application of Federal Constitution to states. 4. The 5th Amendment to the Constitution of the United States is not restrictive of state, but only of national, action. law-impairing Constitutional con tract obligations. 5. There is no contract between the citizens and taxpayers of a municipal corporation and the corporation itself, that the former shall be taxed only for the uses of that corporation, which is impaired by subjecting them to taxation for the uses of the enlarged municipality formed by annexation, under the authority of Pa. act of February 7, 1906, to an adjoining and larger municipality. Constitutional law-due law. process of two cities shall be contiguous or in close "Sec. 2. The councils of either of said cities may, by ordinance, direct that a petition be filed in the court of quarter sessions of the county in which such cities are situate, or 2 per centum of the registered voters of eitner of said cities may present their petition to said court, praying that the two cities and any intervening land other than boroughs shall be united and become 6. Citizens and taxpayers of a lesser one city. Thereupon the said petition shall municipality annexed under the authority be filed; and the court shall fix a time for of Pa. act of February 7, 1906, to an ad- the hearing thereof, not more than twenty joining and larger municipality, are not de- days thereafter, and direct that notice be prived of their property without due process given to the mayor or chief executive officer of law by reason of the burden of additional of each of the said cities, and the clerk of the taxation resulting from the consolidation, although the method of voting prescribed councils of each of said cities, and by pubby the statute has permitted the voters of lication in one or more newspapers pubthe larger city to overpower the voters of lished in either of said cities, and such oththe smaller one, and compel the union with-er notice as the court may deem proper, inout their consent and against their protest. Error to state court — questions review able. 7. A Federal question entirely outside the record, and having no connection with any Federal question which is raised in the record, cannot be considered by the Supreme Court of the United States on writ of error to a state court. [No. 264.] Argued October 25, 28, 1907. Decided vember 18, 1907. cluding notice to one or more of the officers "Sec. 4. Any person legal voters of either of said cities, and of | and owned by the consolidated or united the said intervening land, if any, shall be city. qualified to vote. "Sec. 7. If it shall appear by the vote, when computed and certified as aforesaid, that a majority of all the lawful voters of the two cities and the intervening land, vot[163]ing *upon such question, have voted in favor of the annexation or consolidation, the said court of quarter sessions shall enter a decree annexing and consolidating the lesser city, and any intervening land other than boroughs, with the greater city, so that they form but one city, and in the name of the greater or larger city. "Sec. 8. Each of the constituent cities, and the intervening land, if any, so consolidated, shall pay its own floating and bonded indebtedness and liabilities of every kind, and the interest thereon, as the same existed at the time of annexation; and the councils of the consolidated city shall levy, respectively, on the properties in each of the said cities and intervening land so consolidated, and as they existed at the time of annexation, a tax sufficient to provide funds for each to pay its own floating and bonded indebtedness and liabilities and interest, as the same may accrue. The court of quarter sessions is given jurisdiction to ascertain what the bonded and floating indebtedness, and liabilities, and properties, and assets of each of the said cities and the said intervening land may be; due notice being given and an opportunity to be heard being allowed to all parties in interest. "Sec. 9. All the citizens of each of the united cities and of the intervening land shall be entitled to, and shall enjoy and exercise, full rights of citizenship in the said enlarged and consolidated city. All the rights of creditors and all liens and all the rights of the constituent cities and the government of the intervening land, to enforce the payment of moneys due either, or of contract liabilities, or of other claims or rights of property, existing in either city or in the government of the intervening land at the time of the annexation, shall be preserved unimpaired to each; and each of the said cities and the government of the intervening land, for the purpose of enforcing its rights and claims in the premises, and also of having prior rights and claims enforced against it, shall be deemed in law to continue in existence. [164] *Except as herein otherwise provided, all the property, real, personal, and mixed, and rights and privileges of every kind, vested in or belonging to either of said cities or to the intervening land prior to and at the time of the annexation, shall be vested in "All moneys accruing from time to time from delinquent taxes prior to the annexation, and all assessments against private property for public improvements for which the contractors shall have been paid, shall be applied to the indebtedness of the city to which the same shall belong. In case of annexation, the court may appoint commissioners to ascertain the floating and bonded indebtedness of each of the said municipal subdivisions, at the time of annexation, including the share of the municipal indebtedness for which any intervening land may be liable, and also an account of all property, of every kind, owned or claimed by the cities, or the share of the intervening land to any property owned by the municipal subdivision of the state of which it is a part, prior to and at the time of annexation. The court may also order an account to be taken by the said commissioners of all moneys on hand or receivable, applicable to the payment of the floating or bonded indebtedness of the respective municipalities or of the intervening land, at the date of annexation. Such money shall be, respectively, applied in payment of the floating or bonded indebtedness of the respective municipalities or of the intervening land. "After the commissioners have made report, the court shall, by its decree, fix the said indebtedness and liabilities, and also the properties and assets, of all kinds, at the time of the annexation, belonging to each territory, united in the consolidation." The city of Pittsburgh, under the provision of this act, filed in the court of quarter sessions of Allegheny county a petition asking for the union of the city of Allegheny with the city of Pittsburgh. The[165] plaintiffs in error (except the city of Allegheny) seasonably filed exceptions to the petition under § 4 of the act. The parts of the exceptions material here are as follows: "1st. That they are residents and citizens, voters, taxpayers, and owners of real estate and personal property within the city of Allegheny, county of Allegheny, and state of Pennsylvania. "4th. That the population of the city of 616 and that it has now a population of at Pittsburgh by the census of 1900 was 321,-. least 350,000. That there were polled at the last mayoralty election in the said city, on February 20th, 1906, about 62,000 votes in round numbers. "That the population of the city of Allegheny, by the census of 1900, was 129,896, and that it is probably about 150,000 at the |