MAXEY, District Judge
(after stating the facts as above). As disclosed in the statement of the case, this suit was brought by the plaintiff to recover damages of the defendant, m excess of $2,000, for injuries which he received during the month of March, 1909, in the territory of New Mexico, while discharging his usual duties as brakeman on one of the defendant’s freight trains. The plaintiff is a citizen of Texas, and resides within the Western district of the state'; and the defendant is a common carrier incorporated and organized under the laws of the state of Kansas, and operates a line of railway from El Paso, Tex., through New Mexico, and into the state of its incorporation. It maintains a general office, where its records are kept, in the city of Topeka, Kan. The sole question submitted for decision is whether this court has jurisdiction, over the protest of the defendant, to hear and determine the cause. On the one hand, it is insisted by the plaintiff that the jurisdiction obtains, since diverse citizenship exists and the suit was brought in the district of his residence, where due service was had upon an authorized agent of the defendant. Upon the other, the defendant contends that the suit should be brought in the district of which it is an inhabitant, to wit, the district of Kansas, because the jurisdiction claimed is not founded only on the fact that the suit is between citizens of different states, but that it is based upon the additional ground that the suit is one arising under a law of the United States.
Which of these divergent views is 'correct? To answer the question satisfactorily it becomes necessary to ascertain (1) whether the suit arises under a law of the United States; and (2) whether; if so arising; it was brought in the proper district. As to the first suggestion, the petition of the plaintiff discloses that the cause of action had its origin in- the territory of New Mexico, and subsequent to the passage of the act, entitled “An act relating to the liability of common carriers by railroad to their employés in certain cases,” popularly known as the “Employer’s Eiability Act.” Act April 22, 1908, c. 149, 35 Stat. pt. 1, pp. 65, 66. Section 2 of the act is in the following words:
[531]*531“That every common carrier by railroad in the territories, the District of Columbia, die Panama Canal Zone, or other possessions of the United 8ta1.es shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving wieow or husband and children of such employe; and, if none, then of such employes parents; and, if none, then of the next o£ kin dependent upon such employe, for such injury or death resulting in whole or in part from the negJgonce of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
That the Congress has, within constitutional limitations, full and complete legislative authority over the people of the territories, admits of no question. “Congress may not only abrogate laws of the territorial legislatures,” said Mr. Chief Justice Waite, speaking for the court in National Bank v. County of Yankton, 101 U. S. 133, 25 L. Ed. 1046, “but it may itself legislate directly for the local government. It may make a void act of the territorial Legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people, under the Constitution of the United States, may do for the states.” See, also, Mormon Church v. United States, 136 U. S. 42-14, 10 Sup. Ct. 803, 34 L. Ed. 481, and authorities cited.
Here, then, is an act of Congress, enacted for the p'urpose of enabling employes of common carriers by railroad to recover damages for injuries suffered by them while employed by the common carriers-in the territories. The section of the act quoted has specific application to the territories, and, being the supreme law of the land (Const, art. 6), supersedes all other laws embracing the same subject-matter. By this act the common law is modified in essential particulars; as, for example, where the injuries of the employe result in death, the cause of action survives to his personal representatives for the beneficiaries named in the act. Section 2 of the act in effect abolishes the common-law doctrine of fellow servant, and sections 3 and 4 materially modify, if they do not practically destroy, the common-law doctrine of contributory negligence and of assumed risk. Section 5 renders void any contract, rule, regulation, or device whatsoever intended by the common carrier to exempt itself from any liability created by the act.
When the act is analyzed, it becomes apparent that it was the purpose of the Congress to confer rights and benefits upon the injured employe which were denied him by the common law; and hence the existence of a common-law right of action on the part of an injured employe cannot, in reason, be claimed in the presence of this act of Congress. Indeed, the act is the law, and the only law, under which suits like the present one may be brought. It is the law of the case, by which the rights of the employé and the liability of the carrier, are measured. The very subject-matter of the controversy is federal.. The suit involves the construction, application, and effect of an act of Congress (Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84); and, tested by all the authorities, it is one arising. [532]*532under a law of the United States. It was said by Mr. Justice Strong, as the organ of the court in Tennessee v. Davis, 100 U. S. 264, 25 L. Ed. 648, that:
“A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.”
See, also, Wyman v. Wallace, 201 U. S. 230, 26 Sup. Ct. 495, 50 L. Ed. 738; Defiance Water Co. v. Defiance, 191 U. S. 184, 24 Sup. Ct. 63, 48 L. Ed. 140; Kansas Pacific v. Atchison Railroad, 112 U. S. 414, 5 Sup. Ct. 208, 28 L. Ed. 794; Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482; Railroad Company v. Mississippi, 102 U. S. 141, 26 L. Ed. 96; 2 Bates. Fed. Proc. at Law, § 693.
The present case grows out of, and has its origin in, a law of Congress, and its correct decision depends upon a construction of that law.
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MAXEY, District Judge
(after stating the facts as above). As disclosed in the statement of the case, this suit was brought by the plaintiff to recover damages of the defendant, m excess of $2,000, for injuries which he received during the month of March, 1909, in the territory of New Mexico, while discharging his usual duties as brakeman on one of the defendant’s freight trains. The plaintiff is a citizen of Texas, and resides within the Western district of the state'; and the defendant is a common carrier incorporated and organized under the laws of the state of Kansas, and operates a line of railway from El Paso, Tex., through New Mexico, and into the state of its incorporation. It maintains a general office, where its records are kept, in the city of Topeka, Kan. The sole question submitted for decision is whether this court has jurisdiction, over the protest of the defendant, to hear and determine the cause. On the one hand, it is insisted by the plaintiff that the jurisdiction obtains, since diverse citizenship exists and the suit was brought in the district of his residence, where due service was had upon an authorized agent of the defendant. Upon the other, the defendant contends that the suit should be brought in the district of which it is an inhabitant, to wit, the district of Kansas, because the jurisdiction claimed is not founded only on the fact that the suit is between citizens of different states, but that it is based upon the additional ground that the suit is one arising under a law of the United States.
Which of these divergent views is 'correct? To answer the question satisfactorily it becomes necessary to ascertain (1) whether the suit arises under a law of the United States; and (2) whether; if so arising; it was brought in the proper district. As to the first suggestion, the petition of the plaintiff discloses that the cause of action had its origin in- the territory of New Mexico, and subsequent to the passage of the act, entitled “An act relating to the liability of common carriers by railroad to their employés in certain cases,” popularly known as the “Employer’s Eiability Act.” Act April 22, 1908, c. 149, 35 Stat. pt. 1, pp. 65, 66. Section 2 of the act is in the following words:
[531]*531“That every common carrier by railroad in the territories, the District of Columbia, die Panama Canal Zone, or other possessions of the United 8ta1.es shall be liable in damages to any person suffering injury while he is employed by such carrier in any of said jurisdictions, or, in case of the death of such employe, to his or her personal representative, for the benefit of the surviving wieow or husband and children of such employe; and, if none, then of such employes parents; and, if none, then of the next o£ kin dependent upon such employe, for such injury or death resulting in whole or in part from the negJgonce of any of the officers, agents, or employes of such carrier, or by reason of any defect or insufficiency, due to its negligence, in its cars, engines, appliances, machinery, track, roadbed, works, boats, wharves, or other equipment.”
That the Congress has, within constitutional limitations, full and complete legislative authority over the people of the territories, admits of no question. “Congress may not only abrogate laws of the territorial legislatures,” said Mr. Chief Justice Waite, speaking for the court in National Bank v. County of Yankton, 101 U. S. 133, 25 L. Ed. 1046, “but it may itself legislate directly for the local government. It may make a void act of the territorial Legislature valid, and a valid act void. In other words, it has full and complete legislative authority over the people of the territories and all the departments of the territorial governments. It may do for the territories what the people, under the Constitution of the United States, may do for the states.” See, also, Mormon Church v. United States, 136 U. S. 42-14, 10 Sup. Ct. 803, 34 L. Ed. 481, and authorities cited.
Here, then, is an act of Congress, enacted for the p'urpose of enabling employes of common carriers by railroad to recover damages for injuries suffered by them while employed by the common carriers-in the territories. The section of the act quoted has specific application to the territories, and, being the supreme law of the land (Const, art. 6), supersedes all other laws embracing the same subject-matter. By this act the common law is modified in essential particulars; as, for example, where the injuries of the employe result in death, the cause of action survives to his personal representatives for the beneficiaries named in the act. Section 2 of the act in effect abolishes the common-law doctrine of fellow servant, and sections 3 and 4 materially modify, if they do not practically destroy, the common-law doctrine of contributory negligence and of assumed risk. Section 5 renders void any contract, rule, regulation, or device whatsoever intended by the common carrier to exempt itself from any liability created by the act.
When the act is analyzed, it becomes apparent that it was the purpose of the Congress to confer rights and benefits upon the injured employe which were denied him by the common law; and hence the existence of a common-law right of action on the part of an injured employe cannot, in reason, be claimed in the presence of this act of Congress. Indeed, the act is the law, and the only law, under which suits like the present one may be brought. It is the law of the case, by which the rights of the employé and the liability of the carrier, are measured. The very subject-matter of the controversy is federal.. The suit involves the construction, application, and effect of an act of Congress (Swafford v. Templeton, 185 U. S. 487, 22 Sup. Ct. 783, 46 L. Ed. 1005; Wiley v. Sinkler, 179 U. S. 58, 21 Sup. Ct. 17, 45 L. Ed. 84); and, tested by all the authorities, it is one arising. [532]*532under a law of the United States. It was said by Mr. Justice Strong, as the organ of the court in Tennessee v. Davis, 100 U. S. 264, 25 L. Ed. 648, that:
“A case consists of the right of one party as well as the other, and may truly be said to arise under the Constitution or a law or a treaty of the United States whenever its correct decision depends upon the construction of either. Cases arising under the laws of the United States are such as grow out of the legislation of Congress, whether they constitute the right or privilege, or claim or protection, or defense of the party, in whole or in part, by whom they are asserted.”
See, also, Wyman v. Wallace, 201 U. S. 230, 26 Sup. Ct. 495, 50 L. Ed. 738; Defiance Water Co. v. Defiance, 191 U. S. 184, 24 Sup. Ct. 63, 48 L. Ed. 140; Kansas Pacific v. Atchison Railroad, 112 U. S. 414, 5 Sup. Ct. 208, 28 L. Ed. 794; Ames v. Kansas, 111 U. S. 449, 4 Sup. Ct. 437, 28 L. Ed. 482; Railroad Company v. Mississippi, 102 U. S. 141, 26 L. Ed. 96; 2 Bates. Fed. Proc. at Law, § 693.
The present case grows out of, and has its origin in, a law of Congress, and its correct decision depends upon a construction of that law. This court, therefore, having jurisdiction of the cause as one arising under a law of the United States, it is quite immaterial whether the plaintiff declare, in his petition, expressly upon the act, as in the present case he did in his original petition, or whether the pleadings be silent touching jurisdictional averments. If the case arise — as did the case before the court- — under the second section of the employer’s liability act — that is, if an employe of a carrier by railroad suffer personal injury from the negligence of the latter while employed in the performance of his duty, and such injury result from an accident occurring in the territories — appropriate allegations of such facts are alone sufficient to confer jurisdiction of the case upon a United States court, without specially pleading the act, or without referring to its provisions. This result follows necessarily,' since, in the case supposed, the suit is founded upon a law of the United States, which it is the duty of federal courts to take notice of and to enforce. See Voelker v. Railway Company (C. C.) 116 Fed. 867; Thornton, Employer’s Liability and Safety Appliance Acts, §§ 104, 107.
Attention will now be directed to the second query above propounded. Was the present suit brought in the proper district? The general jurisdiction of the court is not here involved, but the question has reference merely to the place of suability; and in this connection it may not be amiss to add that the record does not present any question of waiver, on the part of the defendant, of its right or privilege of being sued in the district of which it is an inhabitant. In the first pleading filed by the defendant, a protest is entered against the court’s jurisdiction, and it is insisted that the suit should be brought in the district of Kansas. In the examination of this question no aid is derived from the employer’s liability act, and recourse must be had to the act of March 3, 1887, as corrected by Act Aug. 13, 1888, c. 866, 25 Stat. 433 (U. S. Comp. 'St. 1901, p. 508). The applicable part of the first section of the act reads as follows:
“That the Circuit Courts of the United States shall have original cognizance, concurrent with- the courts of the several States, of all suits of a civil nature, [533]*533at common law or in equity, where the matter in dispute exceeds, exclusive of interest and costs, the sum or value of two thousand dollars, and arising under the Constitution or laws of the United States, or treaties made, or which shall he made, under their authority, or in which controversy the United States are i>Iaintiffs or petitioners, or in which there shall he a controversy between citizens of: different states, in which the matter in dispute exceeds, exclusive of interest and costs, the snm or value aforesaid, or a controversy between citizens of the same state claiming lands under grants of different states, or a controversy between citizens of a state and foreign states, citizens, or subjects, in which the matter in dispute exceeds, exclusive of interest and costs, the sum or value aforesaid, and shall have exclusive cognizance of all crimes and offenses cognizable under the authority of the United .States, except as •otherwise provided by law, and concurrent jurisdiction with the District Courts of the crimes and offenses cognizable by them. But no person shall be arrested in one district for trial in another in any civil aefion before a Circuit or District Court; and no civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof he is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall lie brought only in the district of the residence of either the plaintiff or the •defendant.”
Repeating the language of the statute:
“No civil suit shall be brought before either of said courts against any person by any original process or proceeding in any other district than that whereof lie is an inhabitant, but where the jurisdiction is founded only on the fact that the action is between citizens of different states, suit shall lie brought •only in the district of the residence of either the plaintiff or tile defendant.”
That, for jurisdictional purposes, a railway corporation is a person and inhabitant of the state under the laws of which it is incorporated, has been so definitely and conclusively settled by the Supreme Court that a reference to authorities in support of the proposition is deemed altogether useless. Referring to the statute, and eliminating the fedT eral feature of the present case, the jurisdiction of the court would be clear beyond controversy, since in that case the jurisdiction would be founded only on the fact of diverse citizenship. But here there appear (wo sources of jurisdiction, the one founded on diverse citizenship and the other upon the fact that the suit arises under a law of the United States. In the former case, the statute authorizes suit to be brought in the district of the residence of either the plaintiff or the defendant, where the jurisdiction is founded only on the fact that the action is between citizens o f different states; while, in the latter, suit must be brought in the district of which the defendant is an inhabitant. Where the two sources of jurisdiction are combined in one suit, can it be said that the jurisdiction is founded only on the fact that the action is between citizens of different states ? If the language of the statute be given its plain and ordinary meaning, the question propounded must unquestionably be answered in the negative, since the jurisdiction cannot be founded only — that is, using the definition of Webster (Wei). Diet. p. 913), “utterly, entirely, wholly” — on one ground, when another and equally important constituí ional ground is present in the same suit. In cases of this kind, therefore, the suit should be brought in the district of which the defendant is an inhabitant. [534]*534_ The court recognizes the importance of the question under discussion, and has given it careful' consideration. Its decision is based upon the language of the statute; but it is thought that the conclusion announced is clearly supported by the case of In re Keasbey & Mattison Co., 160 U. S. 221, 16 Sup. Ct. 273, 40 L. Ed. 402; If the court has correctly construed the law, the competent authority may readily make any amendment which may be deemed wise and proper. On the other hand, if the construction of the statute, applied by the court, he erroneous, the error may be easily corrected by the appellate tribunals.
For the reasons assigned, the plea to the jurisdiction should be .sustained, and the suit dismissed for the want of jurisdiction; and it is so ordered.