where it is said by Mr. Justice Clifford, who leges and immunities" in the constitutional wrote the opinion in that case, referring to the clause in question refer to the right to mainwords "privileges and immunities" in this tain actions, then a resident of another state section: "Beyond doubt, those words are has the same right to bring an action in the words of very comprehensive meaning, but it courts of this state upon a cause of action will be sufficient to say that the clause plainly arising in another state, and against a citizen and unmistakably secures and protects the of another state, that a citizen of this state has, right of a citizen of one state to pass into any because the Constitution guarantees him the other state of the Union for the purpose of en- same right as a citizen of this state. We engaging in lawful commerce, trade, or business, tirely approve the doctrine held by the supreme without molestation; to acquire personal prop- court of Michigan in Cofrode v. Gartner, erty; to take and hold real estate; to maintain supra, and therefore hold that the trial court actions in the courts of the state; and to be ex- could not dismiss this action merely because empt from any higher taxes or excises than the parties were both citizens of Illinois, and are imposed by the state upon its own citizens." the cause of action arose in Illinois. In referring to the same subject in Paul v. Virginia, 75 U. S. 8 Wall. 168, 19 L. ed. 357, Mr. Justice Field, in the opinion of the court, after defining the object of the constitutional provision in question in quite similar terms, very aptly says: "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." These decisions are all referred to with approval in the opinion of the Supreme Court of the United States in the Slaughter-House Cases, 83 U. S. 16 Wall. 36, 21 L. ed. 394. See, on this same subject, the following cases, which are in harmony with the cases just quoted; Lemmon v. People, 20 N. Y. 608; Campbell v. Morris, 3 Harr. & McH. 535. A case almost identical in its facts with the case before us is the case of Cofrode v. Gartner, 79 Mich. 332, 7 L. R. A. 511, where this provision of the Constitution of the United States is directly construed as guaran teeing the right to a citizen of another state to bring suits in the state of Michigan in any case where a citizen of Michigan was entitled to bring such suit. Indeed, we have been referred to no cases holding the contrary of this proposition, except, possibly, the case of Morris v. Missouri P. R. Co. 78 Tex. 17, 9 L. R. A. 349, where it was held that a Texas court might refuse to take jurisdiction of an action between a Choctaw Indian and a resident of another state, founded upon a cause of action accruing in another state. We do not, however, regard this case as of value as authority on this question, because it was held to be a local action, and not transitory. If this was the case, of course the courts of Texas could not entertain it, whatever the citizenship of the parties. Therefore, what is said at the close of the opinion with regard to the power of dismissing the case on account of the residence of the parties is obiter. Moreover, the question of the rights of a citizen of another state under the Constitution could hardly arise in a case where the plaintiff was a member of an Indian tribe, and consequently not a citizen of any state. We are entirely satisfied that one of the "privileges and immunities" referred to in the constitutional provision is the right to bring and maintain an action in the courts of the state. Any citizen of this state may bring an action in the circuit court of this state upon a transitory cause of action arising in another state, and against a citizen of another state, provided he can obtain jurisdiction of the person of the defendant in this state. This is one of the rights guaranteed him under our Constitution and laws. If the words "privi The question then arises whether the court was right in dismissing the case on the merits, either because no cause of action was proved, or on account of the supposed conflict of the laws of Illinois and Wisconsin. This court has held, as we have seen, that an action to recover for personal injuries negligently inflicted in another state is a transitory action, and is triable in the courts of this state, provided jurisdiction of the person is obtained. Curtis v. Bradford, supra. This doctrine is in accord with the decisions every where, and it is unnecessary to cite authorities. Another rule has been applied, however, by some of the decisions, with regard to actions founded on a statute of another state where such statute is inconsistent with the law of the forum. Thus, it has been held by this court in Anderson v. Milwaukee & St. P. R. Co. 37 Wis. 321, that the courts of this state will not enforce a cause of action arising in Iowa under a statute of that state making an employer liable to his employee for injuries suffered by reason of the negligence of his fellow servant, because it was the settled law of this state at that time that such an action would not lie. For cases holding similar doctrine, see Story, Confl. L. 8th ed. p. 844, § 625, note a; Richardson v. New York C. R. Co. 98 Mass. 85. This doctrine has been substantially disapproved by the Supreme Court of the United States, and by some other courts. Dennick v. Central R. Co. 103 U. S. 11, 26 L. ed. 439; Herrick v. Minneapolis & St. L. R. Co. 31 Minn. 11, 47 Am. Rep. 771. The question, however, does not arise in this case, and hence it is unnecessary to consider upon which side the weight of reason and authority preponderates. The present action is not founded upon any statute of one state not existing in others, but upon certain fundamental and well-settled principles of the common law which prevail in most states of the Union. The principles involved are, briefly: (1) Ordinary negligence by one person, proximately causing personal injury to another, to whom the first owes a duty of care, raises a right of action in the person injured. (2) In order to recover for such injuries, the injured person must himself have been in the exercise of ordinary care at the time of the injury. (3) A servant cannot recover damages of his master for injuries caused solely by the negli gence of his fellow servant. (4) When the master undertakes to furnish the servant a place to work, with the preparation of which place the servant has nothing to do, then it is the master's duty to furnish a reasonably safe place to work, and this duty cannot be delegat ed; and the servant who prepares such place | 571, and was overruled. We fully agree with for work is not, in the eye of the law, a fellow what was there said by Holmes, J., in the servant with the other. These principles are opinion of the court: 'As between the states well established in this state, and the decisions of this Union, when a transitory cause of acof the supreme court of Illinois offered in evi- tion has vested in one of them under the comdence on the trial show that they are recog-mon law as there understood and administered, nized in that state. Lake Shore & M. S. the mere existence of a slight variance of view R. Co. v. Hessions, 150 Ill. 546; Pullman in the forum resorted to, not amounting to a Palace Car Co. v. Laack, 143 Ill. 242, 18 fundamental difference of policy, should not L. R. A. 215; Libby, McN. & L. v. Scherman, prevent an enforcement of the obligation ad146 Ill. 540. Now, the complaint in the pres-mitted to have arisen by the law which gov. ent case clearly states a cause of action under erned the conduct of the parties." Thus far the common law for negligence, and the plain- we go in the present case, and, going thus far, tiff's evidence was sufficient to go to the jury we hold that the trial court should have enterunder the foregoing principles of the common tained and tried the case. As to the form of law, recognized alike in both states. The evi- the remedy, the conduct of the trial, and the dence, in brief, tended to show that the floor rules of evidence, the law of the forum would upon which the plaintiff tripped was a place unquestionably prevail. for him to work in, with the preparation of which he had no duty to perform. If this was so, then, under the principles laid down in Cadden v. American Steel Barge Co. 88 Wis. 409, and Libby, McN. & L. v. Scherman, 146 Ill. 540, we think the "carpenter gang," whose duty it was to replace the planks, were not fellow servants of the plaintiff. If they were not fellow servants, but were simply discharging a duty of the master, then, if they left the plank in question loose, and the plaintiff, without contributory negligence, suffered injury thereby, their failure was failure of the master, under the principles settled in the last named cases. An Illinois statute of limitations was set up in the answer as a defense, but the statute was not offered in evidence. Consequently the question as to its effect upon the plaintiff's cause of action in this suit was not before the court below, is not before us, and hence is not decided. Judgment reversed, and action remanded for a new trial. Cassoday, Ch. J., concurring: I fully concur in the reversal of the judg ment in this case, and much that is contained in the opinion of my Brother Winslow. The only question I desire here to consider is as to We are not to be understood as attempting in whether the plaintiff has the absolute right to advance to lay down rules for the retrial of this bring and maintain this action under the clause case. We have proceeded thus far in the dis- of the Constitution of the United States which cussion of certain fundamental principles of declares that "the citizens of each state shall be the law of negligence for the purpose simply entitled to all the privileges and immunities of of showing that upon these questions, which citizens in the several states." § 2, art. 4. The are the leading and important questions in this only case cited by counsel, or which any of us case, the law as expounded by the courts of have been able to find, so holding in a case last resort in both states is in substantial ac- similar to this, is Cofrode v. Gartner, 79 Mich. cord. The case, then, is this: A transitory 332, 7 L. R. A. 511, and in that case Mr. Juscause of action arose and became vested in Illi- tice Campbell dissented. Besides, that was a nois, under the principles of the common law proceeding by mandamus to compel the court recognized in both Illinois and Wisconsin alike; to entertain a case arising under a contract for and the question is, Can it be prosecuted to judg- the construction of a railroad in Michigan. ment in the courts of Wisconsin, jurisdiction That case was decided after Mr. Justice Cooley of the person having been obtained? We are had left the bench. According to that learned clearly of the opinion that there can be but one author, the precise meaning of "privileges and answer to this question, and that in the affirm-immunities" is not as yet very concisely setative. It is said, however, that there are some differences in the law as administered in the two states with reference to the question of whether a person employed by the same master is a fellow servant or a vice principal, and that in this respect the laws of Illinois are more favorable to the plaintiff than those of Wisconsin. Upon this basis the trial court held that the case depended upon principles of law which are obnoxious to the law of this state, and that it had no jurisdiction to administer the law of Illinois. It is well known that courts are frequently called upon to administer and enforce the laws of another state. Doubtless, upon the trial of this case the plaintiff's right of action will depend upon the law of Illinois as it shall be shown to be. There is no inherent difficulty in finding out or applying the legal principles governing the cause of action in Illinois when the accident happened. The same objection was made in the case of Walsh v. New York & N. E. R. Co. 160 Mass. tled. Cooley, Const. Lim. 6th ed. 490. The Supreme Court of the United States (the final arbiter) has not, it would seem, determined the precise question suggested, although that court has many times considered the clause of the Constitution mentioned. Mr. Story says: "The intention of this clause was to confer on them [citizens], if one may so say, 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." 2 Story, Const. § 1806. Mr. Hare says "that the clause in question adds nothing to the rights given and restraints laid by the other articles of the Constitution, except that the rules made by each state with regard to the citizens of her sister states must be the same as those which she imposes on her own citizens." 1 Hare, Const. Law, 513. In Paul v. Virginia, 75 U. S. 8 Wall. 180,19 L. ed. 360, Mr. Justice Field said: "But the privileges and immunities secured to citizens of each state in the several states. by the provision in question, are those privileges and immunities which are common to the citizens in the latter states, under their Constitution and laws, by virtue of their being citizens. Special privileges en joyed by citizens in their own states are not secured in other states by this provision. It was not intended by the provision to give to the laws of one state any operation in other states. They can have no such operation except by the permission, express or implied, of those states." The definition thus given was sanctioned by Mr. Justice Miller in the Slaugh ter-House Cases, 83 U. S. 16 Wall. 36, 21 L. ed. 394, and he there added: "The constitutional provision there alluded to did not create those rights which it called privileges and immuni ties of citizens of the states. It threw around them in that clause no security for the citizen of the state in which they were claimed or exercised. Nor did it profess to control the power of the state governments over the rights of its own citizens. 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." has recently not only recognized, but sanctioned, such principles of interstate comity, in an opinion by Mr. Justice Pinney. Gilman v. Ketcham, 84 Wis. 60, 23 L. R. A. 52. Thus, in National Teleph. Mfg. Co. v. Du Bois, 165 Mass. 117, 30 L. R. A. 628, it is held that "to a foreign corporation having a place of business here and suing a citizen of another state, the courts of equity in this commonwealth are not open as matter of strict right, but as matter of comity." In Smith v. Mutual L. Ins. Co. 14 Allen, 336, it was held that "this court will not entertain jurisdiction of a bill in equity brought by a citizen of Alabama, who has never liveď here, against an incorporated mutual life insurance company of New York, seeking to restore him to his rights under a policy issued by the defendants in New York upon his life, he having failed to pay the premiums required by the terms of the policy, although the defendants transact business in this commonwealth, and have appointed an agent resident here upon whom all lawful processes against the company may be served.” To the same effect, Bank of North America v. Rindge, 154 Mass. 203, 13 L. R. A. 56; Kimball v. St. Louis & S. F. R. Co. 157 Mass. 7; Renier v. Hurlbut, 81 Wis. 24, 14 L. R. A. 562. Numerous other cases might be cited to the same effect. It may be conceded that an action for a tort to the person may generally be maintained in any jurisdiction in which the defendant can be legally served with process. It seems to be essential, however, that the wrong complained of, although actionable according to the law of the state where the action is brought, should also be actionable according to the law of the state or country in which it occurred or was committed. Dicey, Confl. L. 667, and cases there cited. In actions at common law this identity or similarity of law is assumed to exist in the absence of reasons to the contrary. Id., citing Walsh v. New York & N. E. R. Co. 160 Mass. 571. In statutory actions it is held that "if the foreign law is a penal statute, or if it offends our own policy, or is repugnant to justice or to good morals, or is calculated to injure this state or its citizens, or if we have not jurisdiction of parties who must be brought in to enable us to give a satisfactory remedy, or if, under our forms of procedure, an action here cannot give a substantial remedy, we are at liberty to decline jurisdiction." Higgins v. Central, N. E. &W. R. Co. 155 Mass. 180, and cases there cited. Many similar expressions have emanated from the same tribunal. In addition to the enforcement of the criminal laws and police regulations as to persons and property within the state, the principal functions of a state government would seem to be to make and enforce laws for and against its own citizens, and for and against property and rights of property located or having a situs therein. The party to such a controversy, although a nonresident and a citizen of another state, undoubtedly has the same "privileges and immunities" as a party who is a citizen of the same state; otherwise the administration of the law would be partial and unjust. But, in my judgment, the case at bar does not come within the letter or spirit of the constitutional guaranty mentioned. Since this state has no power to authorize an action to be commenced and maintained by one of its own citizens against another of its own citizens, in the courts of another state, in respect to a tort committed in this state, it necessarily follows that the courts of this state are not arbitrarily bound, by the constitutional provision quoted, to entertain jurisdiction of a suit commenced by one citizen and resident of Illinois against another citizen and resident or corporation of Illinois, when the only controversy is in regard to a tort committed in Illinois, unless that clause requires this state to grant "privileges and immunities" to citizens of other states which it has no power to grant to its own citizens "under the like circumstances." This, as shown, would be contrary to the authorities cited. To avoid such an anomaly, according to Mr. Story, the wording of the corresponding clause in the old Articles of Confederation was purposely changed to its present form. 2 Story, Const. § 1805. Actions like the one at bar are generally governed by the principles of interstate comity. Cooley, Const. Lim. 6th ed. pp. 150, 151. This court In considering § 1 of art. 4 of the Constitution of the United States, Fuller, Ch. J., speaking for the majority of the court, said: "The Constitution did not mean to confer any new power on the states, but simply to regulate the effect of their acknowledged jurisdiction over persons and things within their territory." Cole v. Cunningham, 133 U. S. 112, 33 L. ed. 541, affirming 142 Mass. 47, 56 Am. Rep. 657. He then said: "The intention of § 2 of art. 4 was to confer on the citizens of the several states a general citizenship, and to communi cate all the privileges and immunities which the citizens of the same state would be enti tied to under the like circumstances, and this includes the right to institute actions. The fact of the citizenship of Butler and Hayden did not affect their privilege to sue in New York, and have the full use and benefit of the courts of that state in the assertion of their legal rights; but, as that fact might affect the right of action as between them and the citizens of their own state, the courts of New York might have held that its existence put an end to the seizure of their debtor's property by Butler, Hayden, & Co., in New York. If, however, those courts declined to take that view, it would not follow that the courts of Massachusetts violated any privilege or immunity of Massachusetts' own citizens in exercising their undoubted jurisdiction over them." The learned chief justice then goes on at great length, and shows by the citation of numerous adjudications that since the litigants were both citizens of Massachusetts, and sub ject to the jurisdiction of its courts, one of them might be restrained from prosecuting an action previously commenced in New York to collect a debt by garnishment therein. The opinion is replete with learning and authorities to the effect that, where both parties to the controversy are citizens and residents of the same state, one may restrain the other from prosecuting a suit against him in some other state, and in fraud of the laws of the state where they both reside. If the Constitution of the United States gives to every party to a transitory action the absolute right to commence and maintain the same in any state of the Union where he can get service on the defendant, then it is difficult to perceive upon what theory they can be restrained from exercising such constitutional right. In several of the states a nonresident is required by statute to give security for costs as a condition precedent to commencing or maintaining a suit, when no such requirement is made of a resident plaintiff; and the validity of such statutes have been sustained. Reno, Non-Residents, pp. 44, 45. If such authorities are sound, then it is difficult to perceive how the right to bring and maintain the suit can be regarded as an absolute constitutional right. If the constitutional clause in question gave to the plaintiff the absolute right to commence and maintain this action, then it would seem that the state courts have generally, and for a century, labored under a grave misapprehension in holding that jurisdiction in such cases was governed by the principles of interstate comity. This hasty expression of opinion is merely to indicate the grounds on which I differ from the opinion filed. UNITED STATES CIRCUIT COURT OF APPEALS, SIXTH CIRCUIT. NOTE. Reduction of prisoner's term by allowance | terms that certain credits or deductions from a for good behavior. term of imprisonment shall be allowed for good conduct, without requiring any action on the part I. Constitutionality of statutes providing therefor. of the governor for this purpose, is held not to be II. Construction and effect of statutes. a. In general. b. Federal cases. I. Constitutionality of statutes providing therefor. There is some conflict among the decisions as to the validity of the statutes upon this subject, but most of them hold that the legislature may constitutionally provide for good-time credits, or deductions from the sentences of prisoners on account of good conduct. Different objections are raised against the validity of such statutes. One is that they infringe upon the governor's pardoning power. But this objection is not sustained by most of the courts that have considered it. Thus, the case of Com, Johnson, v. Halloway, 42 Pa. 446, holds that such a statute does not infringe upon the pardoning power, although the court regards it as subject to another objection. So, in Ohio the provision for a system of credits whereby the term of a sentence may be diminished which is given by the Ohio act of March 24, 1884, as amended May 4, 1885, § 7, is held not to be an interference with the pardoning power of the governor. State, Atty. Gen., v. Peters, 43 Ohio St. 629. And in California a statute providing in express unconstitutional as an infringement of his power to pardon, as it does not take away or interfere with such power in any way. The court says the statute simply fixes the term of imprisonment in certain cases and upon certain conditions, and that this provision enters into and becomes a part of the judgment of the court below. Ex parte Wadleigh, 82 Cal. 518. But as applied to persons who were in the penitentiary at the time of the passage of the act, it is held in Tennessee that the act of 1885 (Acts Ex. Sess. p. 87), allowing good time to convicts, is an attempted exercise of the pardoning power which is vested alone in the governor under the Constitution, and therefore void. State v. McClellan, 87 Tenn. 52. As to the claim that the Ohio act providing for parole of prisoners and giving a system of goodtime credits is retroactive, and therefore unconstitutional so far as it affects past sentences, the court says, in State, Atty. Gen., v. Peters, supra, that the only party who could object is the prisoner, and he cannot where it is clearly for his benefit; and that the question whether a case might not possibly arise in which the personal rights of the prisoner would be infringed need not be considered until such a case does arise. 3. The possibility of a deduction by good-time credits, although contingent on the conduct of the convict, does not render a sentence so indefinite or uncertain that a successive sentence to begin on the expiration of the former will be invalid. Mr. J. D. Brannan for appellant. Mr. Harlan Cleveland, for appellee: Relator was not detained or required to be detained by virtue of any warrant. He was detained by virtue of the judgment of 'the court, and that judgment was a sufficient au4. A consolidation of separate indict-thority for his detention. ments charging definite offenses for the purposes of trial does not make them one offense so as to permit but one sentence. People, Trainor, v. Baker, 89 N. Y. 460; Church, Habeas Corpus, § 128. If the second mittimus will not hold the 5. The question of error in an order petitioner, the third one, No. 1, 729, would imconsolidating indictments cannot be re-mediately become operative, and after it examined by writ of habeas corpus, as error in No. 1,730, and so on to the end. that respect would not make the judgment and Blitz v. United States, 153 U. S. 308, 38 L. sentence void as without jurisdiction and author-ed. 725; Gregory v. Queen, 15 Q. B. 974. ity. (July 8, 1896.) Clark, District Judge, delivered the opin from ion of the court. the Circuit Court of the United States for the Southern District of Ohio denying a petition for habeas corpus to release petitioner from custody to which he had been committed under a sentence for using the postoffice department in execution of schemes to defraud. Affirmed. "The facts are stated in the opinion. Before Lurton, Circuit Judge, and erens and Clark, District Judges. Eight indictments were returned against petitioner, Howard, in the district court of the United States for the eastern division of the western district of Tennessee, charging him with violations of § 5480 of the Revised Statutes of the United States in the use of the postoffice establishment of the United States in the execution of schemes to defraud. The docket Sev-numbers of the cases were 1,727, 1,728, 1.729, 1,730, 1,731, 1,732, 1,758, and 1,759, respec Another objection raised to such statutes is that they infringe upon the province of the judiciary. But while the courts are usually given a discretion as to fixing a sentence between the maximum and the minimum penalty, or between alternative penalties, it is said by the supreme court of Ohio that this may be taken away without infringing upon the exclusive power of the judiciary. State, Atty. Gen., v. Peters, 43 Ohio St. 629. This was decided in upholding the Ohio act of March 24, 1884, as amended May 4, 1885, providing for a system of merit and demerit accounts and deductions from sentences for good conduct (as well as for a parole of convicts and also for indeterminate sentences under which the prisoner must serve at least the minimum term provided by law, and cannot be held longer than the maximum term so provided, leaving the termination of the sentence within those limits to the board of managers). The court says: "It marks a new experiment in the management and discipline of prisoners, whether serving under fixed or indeterminate sentences. It is evidently prompted by a desire to reform as well as to punish, to make better those under sentence as well as to protect society." The court proceeds to say: "Whether this legislation is widely adapted to that end, or whether it is practicable, it is not the province of this court to determine." But, on the other hand, the Pennsylvania act of May 1, 1861, providing for a graduated deduction from a term of imprisonment in the state penitentiary as a reward for good conduct, is held, in Com., Johnson, v. Halloway, 42 Pa. 446, to be unconstitutional as interfering with judgments of the judiciary, although the court does not regard it as an infringement on the governor's pardoning power. The court says: "From what judicial sentence may not the legislature direct 'deductions' to be made if this act be constitutional? What they may do indirectly they may do directly. If they may authorize boards of inspectors to disregard judicial sentences why may they not repeal them as fast as they are pronounced and thus assume the highest judicial functions?" Further on the court says: "In respect to one of the relators who was convicted and sentenced before the law was passed, it is considered very clear that it is a legislative impairing of an existing legal judgment. But is it not equally so in respect to him who was sentenced since the date of the act? The court could not have taken the act into account in measuring the sentence because they could not know how many days of abatement the prisoner would earn." It should be said, however, that the judges were not all agreed on this point, and that the decision was rested also on other and independent ground. As to the parole of prisoners, see People v. Cummings (Mich.) 14 L. R. A. 285, and note. The right of a convict to a prescribed reduction from his sentence upon compliance with the rules of the prison, which is given under 2 How. Stat. (Mich.) § 9704, is one of which he cannot be deprived, and the act of 1893, the effect of which is to deprive a person sentenced under the prior statute of this right in part by reducing the amount of his credits, is to that extent an ex post facto law, because its effect is to increase, and not to mitigate, his punishment. Therefore the prisoner is entitled to credit upon the basis of the statute under which he was sentenced. Re Canfield, 98 Mich. 644. II. Construction and effect of statutes. a. In general. Independently of any constitutional objection, the Pennsylvania act of May 1, 1861, is construed as evidently meant to give the inspectors a measure of discretion by conferring upon them power and authority to discharge, without expressly enjoining the duty, and as in the exercise of that discretion they had declined to discharge the relators, and, indeed, to execute the law, the court said: "We will not overrule their reasons nor control their discretion." Com., Johnson, v. Holloway, 42 Pa. 446. So, by the Pennsylvania act of May 21, 1868, it is held that large discretionary power in the matter of discharge for good behavior is given to the inspectors, the discharge in such cases not being a matter of strict right, but rather of favor. Reinhart v. Vaux, 10 W. N. C. 222. No executive pardon is held necessary to the discharge of a prisoner at the expiration of his term as reduced by allowances for good conduct under |