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B. R. Co. v. Philadelphia & H. de G. Steam | ting hair and shaving beards shall not be
Towboat Co. 23 How. 209, 16 L. ed. 433. deemed a work of necessity or charity."

State v. Frederick, 45 Ark. 347, 55 Am. Rep. 555; Com. v. Waldman, 140 Pa. 89, 11 L. R. A. 563, 21 Atl. 248; Com. v. Williams, 1 Pearson (Pa.) 61; Phillips v. Innes, 4 Clark & F. 234; Com. v. Dextra, 143 Mass. 28, 8 N. E. 756; People ex rel. Hobach v. Kings County Sheriff, 13 Misc. 587, 35 N. Y. Supp. 19; People v. Bellet, 99 Mich. 151, 22 L. R. A. 696, 57 N. W. 1094. See also 15 Central Law Journal, 145.

Sunday laws forbidding in general terms We have uniformly recognized state laws all manner of work or labor on Sunday, ex- relating to the observance of Sunday as encept works of necessity and charity, apply acted in the legitimate exercise of the police to the ordinary trade or vocation of a bar-power of the state. The subject was fully ber; and such usual trade or vocation is not considered in Hennington v. Georgia, 163 U. a work of necessity or charity within the S. 299, 41 L. ed. 166, 16 Sup. Ct. Rep. 1086, meaning of the statutory exceptions. and it is unnecessary to go over the ground again. It was there said: "The legislature having, as will not be disputed, power to enact laws to promote the order and to secure the comfort, happiness, and health of the people, it was within its discretion to fix the day when all labor within the limits of the state, works of necessity and charity excepted, should cease." And these observations of Mr. Justice Field, then a member of the supreme court of California, in Ex parte Newman, 9 Cal. 502, whose opinion was approved in Ex parte Andrews, 18 Cal. 678, in reference to a statute of California relating to that day, were quoted: "Its requirement is a cessation from labor. In its enactment the legislature has given the sanction of law to a rule of conduct which the entire civ. ilized world recognizes as essential to the physical and moral well-being of society. Upon no subject is there such a concurrence of opinion, among philosophers, moralists, and statesmen of all nations, as on the necessity of periodical cessations from labor. One day in seven is the rule, founded in experience, and sustained by science. The prohibition of secular business on Sunday is advocated on the ground that by it the general welfare is advanced, labor protected, and the moral and physical well-being of society promoted." Well-nigh innumerable decisions of the state courts have sustained the validity of such laws.

The statute does not conflict with the 14th Amendment to the United States Constitution, since this amendment does not prohibit legislation which is limited either in the object to which it is directed, or in the territory within which it is to operate; nor can the statute be said to be class legislation; nor does it operate to deprive plaintiff in error of property without due process of law. Hayes v. Missouri, 120 U. S. 69, 30 L. ed. 578, 7 Sup. Ct. Rep. 350; Missouri v. Lewis, 101 U. S. 22, 25 L. ed. 989; Barbier v. Connolly, 113 U. S. 27, 28 L. ed. 923, 5 Sup. Ct. Rep. 357; Missouri P. R. Co. v. Mackey, 127 U. S. 205, 32 L. ed. 107,8 Sup. Ct. Rep. 1161; Lavallee v. St. Paul, M. & M. R. Co. 40 Minn. 249, 41 N. W. 974; Johnson v. St. Paul & D. R. Co. 43 Minn. 222, 8 L. R. A. 419, 45 N. W. | 156: Boston Beer Co. v. Massachusetts, 97 U. S. 25, 24 L. ed. 989; Dent v. West Virginia, 129 U. S. 124, 32 L. ed. 626, 9 Sup. Ct. Rep. 231; Yick Wo v. Hopkins, 118 U. S. 370, 30 L. ed. 226, 6 Sup. Ct. Rep. 1064; Missouri P. R. Co. v. Humes, 115 U. S. 512, 29 L. ed. 463, 6 Sup. Ct. Rep. 110; Minneapolis & St. L. R. Co. v. Beckwith, 129 U. S. 26, 32 L. ed. 585, 9 Sup. Ct. Rep. 207; Soon Hing v. Crowley, 113 U. S. 703, 28 L. ed. 1145, 5 Sup. Ct. Rep. 730; Powell v. Pennsylvania, 127 U. S. 678, 32 L. ed. 253, 8 Sup. Ct. Rep. 992. 1257: Mugler v. Kansas, 123 U. S. 663, 31 L. ed. 211, 8 Sup. Ct. Rep. 273.

[164] Mr. Chief Justice Fuller delivered the opinion of the court:

Petit was tried and convicted of keeping open a barber shop on Sunday, for the purpose of cutting hair and shaving beards, contrary to § 6513 of the General Statutes of Minnesota for 1894, and the judgment was affirmed by the supreme court of Minnesota. 74 Minn. 376, 77 N. W. 225. This writ of error was then allowed.

But it is contended that by reason of the proviso this act must be held unconstitutional, because thereby restricted in its operation on the particular class of craftsmen to which Petit belonged, as contradis tinguished from other classes of labor. The proviso was added in 1887 to § 225 of the Penal Code of Minnesota of 1885 (Laws Minn. 1887, chap. 54).

By the original statute all labor was prohibited, excepting the works of necessity or charity, which included whatever was needful during the day for the good order, health, or comfort of the community. As the supreme court said, if keeping a barber[166] shop open on Sunday for the purposes of shaving and hair cutting was not a work of necessity or charity, within the meaning of the statute as it originally read, the amend ment did not change the law. And it would be going very far to hold that because out of abundant caution the legislature may Section 6513 read as follows: "All labor have sought to obviate any misconstruction on Sunday is prohibited, excepting the as to what should be considered needful works of necessity or charity. In works of during that day for the comfort of the comnecessity or charity is included whatever is munity, as respected work generally so deneedful during the day for good order, sirable as tonsorial labor, by declaring the health, or comfort of the community: Pro- meaning of the statute as it stood, therevided, however, That keeping open a bar- fore the law was transferred to the category [165] her shop on Sunday *for the purpose of cut-of class legislation. The legislature had the

right to define its own language, and the statute thus interpreted could not reasonably be held to have made any discrimination.

The question is not whether the bare fact of shaving some particular individual under exceptional circumstances might not be upheld, but whether the public exercise of the occupation of shaving and hair cutting could be justified as a work of necessity or charity.

In Phillips v. Innes, 4 Clark & F. 234, the House of Lords held that shaving on Sunday was not a work of necessity or mercy or charity. The act, 29 Car. II., chap. 7, prohibited work on the Lord's Day, "works of necessity and charity only excepted;" and by the Scotch statute of 1579, chap. 70, it was enacted, among other things, that "no handy-labouring or working be used on the Sunday;" and the same prohibition was enacted by the statute of 1690, chap. 7, which added to the private and public exercise of worship "the duties of necessity or mercy." The case came to the House of Lords from the court of session, and Lord Chancellor Cottenham said: "This work is not a work of necessity, nor is it a work of mercy; it is one of mere convenience; and if your Lordships were to act upon this case as a precedent for other cases, founded upon no more than convenience, your Lordships would, I apprehend, be laying down a rule by which the law of Scotland prohibiting persons from carrying on their ordinary business on Sundays would be repealed or

rendered useless."

Lord Wynford concurred, saying: "It [167] was not necessary that people should be shaved on Sunday in a public shop; it was not an act of mercy, it was clearly an act of handicraft."

Lord Brougham was of the same opinion, and observed that "he whose object was gain did not come within the exception."

In Com. v. Waldman, 140 Fa. 89, 98, 11 L. R. A. 563, 564, 21 Atl. 248, the supreme court of Pennsylvania said: "We are now asked to say that shaving is a work of 'necessity, and therefore within the exceptions of the act of 1794. It is. perhaps, as much a necessity as washing the face, taking a bath, or performing any other act of personal cleanliness. A man may shave himself, or have his servant or valet shave him, on the Lord's Day, without a violation of the act of 1794. But the keeping open of his place of business on that day by a barber, and the following his worldly employment of shaving his customers, is quite another matter; and, while we concede that it may be a great convenience to many persons, we are not prepared to say, as a question of law, that it is a work of necessity within the meaning of the act of 1794."

calling, and not within the exceptions of the statute."

On the other hand, the supreme judicial court of Massachusetts held in Stone v. Graves, 145 Mass. 353, 13 N. E. 906, that it could not be ruled, as matter of law, that the work of shaving an aged and infirm person in his own house on the Lord's Day was not a work of necessity.

And in Ungericht v. State, 119 Ind. 379, 21 N. E. 1082, it was held by the supreme court of Indiana that it must be left to the jury, as a question of fact, to determine, under proper instructions from the court, what particular labor, under the circumstances, would constitute a work of necessity.

We think that the keeping open by barbers of their shops on Sunday for the general pursuit of their ordinary calling was, as matter of law, not within the exceptions of the statute as it read before the amendment.

But even if the question whether keeping hair and shaving beards, under some circumopen a barber shop on Sunday for cutting[168 stances, was a work of necessity or charity, was a question of fact under the original act, which was foreclosed as such by the amendment, the result is the same.

Assuming that the proviso did have this effect, the supreme court was of opinion that the classification was not purely arbitrary. The court pointed out that the law did not forbid a man shaving himself or getting someone else to shave him, but the keeping open a barber shop for that purpose on Sunday; that the object mainly was to protect the employees by insuring them a day of rest; and said: "Courts will take judicial notice of the fact that, in view of the custom to keep barber shops open in the evening as well as in the day, the employees in them work more, and during later, hours than those engaged in most other occupations, and that this is especially true on Saturday afternoons and evenings; also that, owing to the habit of so many men to postpone getting shaved until Sunday, if such shops were to be permitted to be kept open on Sunday, the employees would ordinarily be deprived of rest during half of that day. In view of all these facts we cannot say that the legislature has exceeded the limits of its legislative police power in declaring that, as a matter of law, keeping barber shops open on Sunday is not a work of necessity or charity, while as to all other kinds of labor they have left that question to be determined as one of fact."

We recognize the force of the distinctions suggested and perceive no adequate ground for interfering with the wide discretion confessedly necessarily exercised by the states in these matters, by holding that the classification was so palpably arbitrary as to bring the law into conflict with the Federal Constitution. Orient Ins. Co. v. Daggs, 172 U. S. 557, 43 L. ed. 552, 19 Sup. Ct. Rep. 281.

In State v. Frederick, 45 Ark. 347, the court ruled that: "The courts will take judicial notice that the shaving of his customers by a barber is a worldly labor, or work done by him in the course of his ordinary Judgment affirmed.

177 U. S.

719

[169]*CRYSTAL SPRINGS LAND & WATER COMPANY and S. G. Murphy, Appts.,

v.

CITY OF LOS ANGELES.

(See S. C. Reporter's ed. 169.)

tion of its impairment for the purpose of
creating a Federal question to give jurisdic-
tion on writ of error from the Supreme Court
of the United States to a state court.
[No. 392.]

Federal question—rights based on Mexican Submitted March 19, 1900. Decided April

grant.

A suit to establish water rights connected with
I
lands included in a grant from the Mexican
government, which rights are claimed to be
within the protection of the treaty with Mex-
ico, is held to involve no Federal question for
the purpose of giving jurisdiction to the Fed-
eral courts.

[No. 41.]

Submitted March 15, 1900. Decided April
9, 1900.

PPEAL from a decree of the Circuit

9, 1900.

N ERROR to the Court of Appeals for the

State of Maryland to review decrees of affirmance sustaining a statute changing the be in impairment of the obligation of a conname of a corporation, which is alleged to tract. Dismissed.

See same case below, 88 Md. 633, 42 Atl. 58.

Mr. E. J. D. Cross submitted the cause for plaintiff in error. Mr. Abner McKinley was with him on the brief.

Mr. William Pinkney Whyte sub

A Court of the United States for the mitted the cause for defendant in error.

Southern District of California dismissing a
bill for want of jurisdiction. Affirmed.

See same case below, 82 Fed. Rep. 114.
Messrs. Stephen M. White and John
Garber submitted the cause for appellants.
Mr. S. O. Houghton submitted the cause
for appellee. Messrs. Walter F. Haas and
Lee & Scott were with him on the brief.

Per Curiam: Bill to quiet title to cer-
tain waters, water rights, and works con-
nected therewith. Bill dismissed for want
of jurisdiction, and question of jurisdiction
certified. Reported below, 82 Fed. Rep. 114,
76 Fed. Rep. 148.

Messrs. George R. Willis and Francis T.
Homer were with him on the brief.

Per Curiam: Cause reported in state court, 88 Md. 633, 42 Atl. 58. Writ of error dismissed on the authority of Williams v. Eggleston, 170 U. S. 304, 309, 42 L. ed. 1047, 1049, 18 Sup. Ct. Rep. 617; Hamblin v. Western Land Co. 147 U. S. 531, 37 L. ed. 267, 13 Sup. Ct. Rep. 353; Wilson v. North Carolina, 169 U. S. 586, 595, 42 L. ed. 865, 871, 18 Sup. Ct. Rep. 435.

AUGUST J. HENKEL, Plff. in Err.,

v.

CITY OF CINCINNATI.

(See S. C. Reporter's ed. 170, 171.)

chief justice.

Decree affirmed on authority of (1) Phillips v. Mound City Land & Water Asso. 124 U. S. 605, 31 L. ed. 588, 8 Sup. Ct. Rep. 657; California Powder Works v. Davis, 151 U. S. 389, 395, 38 L. ed. 206, 208, 14 Sup. Ct. Rep. 350; New Orleans v. DeArmas, 9 Pet. 224, 9 L. ed. 109; Borgmeyer v. Idler, 159 U. S. 408, Writ of error to state court-certificate of 40 L. ed. 199, 16 Sup. Ct. Rep. 34; Muse v. Arlington Hotel Co. 168 U. S. 430, 42 L. ed. 531, 18 Sup. Ct. Rep. 109; (2) Robinson v. Anderson, 121 U. S. 522, 30 L. ed. 1021, 7 Sup. Ct. Rep. 1011; Florida C. & P. R. Co. v. Bell, 176 U. S. 330, ante, 486, 20 Sup. Ct. Rep. 402; Little York Gold-Washing & Water Co. v. Keyes, 96 U. S. 199, 24 L. ed. 656; Tennessee v. Union & P. Bank, 152 U. S. 454, 38 L. ed. 511, 14 Sup. Ct. Rep. 654; New Orleans v. Benjamin, 153 U. S. 411, 424, Argued March 20, 21, 1900. Decided April 38 L. ed. 764, 769, 14 Sup. Ct. Rep. 905.

[170]*ELLEN J. O. PHINNEY, Gerald C. Tobey,

Horace P. Tobey, et al., Plffs. in Err.,

v.

TRUSTEES OF THE SHEPPARD AND
ENOCH PRATT HOSPITAL.

(See S. C. Reporter's ed. 170.)

The certificate of the chief Justice of the su-
preme court of a state, stating that a ques-
tion as to a violation of the Federal Constitu-
tion was submitted to the court and decided,
cannot confer jurisdiction upon the Supreme
Court of the United States on writ of error
to the state court.

[No. 206.]

9, 1900.

IN ERROR to the Supreme Court of the
State of Ohio to review a judgment af-
firming a decision dismissing a bill for in-
junction to restrain collection of a special
assessment. Dismissed.

See same case below, 58 Ohio St. 726, 51
N. E. 1098.

Mr. L. Benton Tussing argued the
cause, and Messrs. Donaldson & Tussing and

Writ of error to state court-right to raise Dolle & Dolle filed a brief for plaintiff in er

Federal question.

A stranger to a contract cannot raise the ques-
NOTE.-18 to jurisdiction of cases involving
Federal questions-see notes to Montana Ore
Purchasing Co. v. Boston & M. Consol. Copper
& Silver Min. Co. 35 C. C. A. 7 and Bailey v.
Mosher, 11 C. C. A. 308.

ror.

Messrs. Wade H. Ellis and Ellis G. Kinkead argued the cause and filed a brief for defendant in error.

*Per Curiam: Bill for injunction to re-[171] strain collection of a special assessment filed

in court of common pleas, Hamilton county,
Ohio, and on hearing dismissed. Carried by
appeal to circuit court of Hamilton county,
heard there, and again dismissed. Appealed
to supreme court of Ohio, and the judgment
of the circuit court affirmed June 14, 1898,
it being ordered "that a special mandate be
sent to the circuit court of Hamilton county
to carry this judgment into execution."

sions of a statute of the state in which the
court is sitting, there being no law of Con-
gress in conflict therewith, is conferred by U.
S. Rev. Stat. § 721, providing that the laws
of the states shall be rules of decision in
trials at common law in courts of the United
States, in cases in which they apply.
[No. 174.]

1900.

June 21, "mandate issued," and "original Argued March 6, 1900. Decided April 9,
papers sent to clerk." Opinion, 58 Ohio St.
726, 51 N. E. 1098: "Judgment affirmed on

N A CERTIFICATE from the United

authority of Cleveland v. Wick, 18 Ohio St.States Circuit Court of Appeals for the

304."

January 6, 1899, the chief justice of the supreme court of Ohio made and signed a certificate that the question whether the assessment was in violation of the Fourteenth Amendment was submitted to the court, and that the court decided that it was not.

The record does not show that any Federal question was raised prior to judgment, but it appears in the petition for writ of error from this court, and accompanying assign ment of errors. The certificate of the chief justice could not confer jurisdiction. Par melee v. Lawrence, 11 Wall. 36, 20 L. ed. 48; Powell v. Brunswick County, 150 U. S. 433, 439, 37 L. ed. 1134, 1136, 14 Sup. Ct. Rep. 166; Dibble v. Bellingham Bay Land Co. 163 U. S. 63, 69, 41 L. ed. 72, 74, 16 Sup. Ct. Rep. 939.

The writ of error is dismissed on the authority of Sayward v. Denny, 158 U. S. 180, 183, 39 L. ed. 941, 942, 15 Sup. Ct. Rep. 777; Ansbro v. United States, 159 U. S. 695, 40 L. ed. 310, 16 Sun. Ct. Rep. 187; Oxley Stave Co. v. Butler County, 166 U. S. 648, 41 L. ed. 1149, 17 Sup. Ct. Rep. 709; Miller v. Cornwall R. Co. 168 U. S. 131, 42 L. ed. 409, 18 Sup. Ct. Rep. 34; Keokuk & H. Bridge Co. v. Illinois, 175 U. S. 626, ante, 299, 20 Sup. Ct. Rep. 205,

[172] CAMDEN &

SUBURBAN RAILWAY
COMPANY, Plff. in Err.,

v.

DAVID S. STETSON.

(See S. C. Reporter's ed. 172-177.)

Federal courts-power to order surgical examination of party.

Third Circuit presenting questions as to the right of a Federal court to order a physical examination of plaintiff. Answered in the affirmative.

Statement by Mr. Justice Peckham:

This case comes here upon a certificate from the circuit court of appeals for the third circuit, under the act of 1891, chapter 517, section 6 (26 Stat. at L. 826). The action was brought in the circuit court of the United States for the district of New Jersey by the plaintiff against the railway company, to recover damages for an alleged injury to his person caused by the neglect of the defendant while the plaintiff was a passenger on one of defendant's cars. time that he brought suit plaintiff was a railway company being a corporation of the citizen of the state of Pennsylvania, the state of New Jersey. The alleged neglect and injury occurred on the 13th day of July, 1896, in the city of Camden, in the state of New Jersey, and at that time the plaintiff

was a citizen of that state.

At the

of New Jersey passed and the governor ap-
On the 12th of May, 1896, the legislature
proved an act which reads as follows:

"1. On or before the trial of any action
brought to recover damages for injury to the
person, the court before whom such action is
pending may, from time to time, on applica-
tion of any party therein, order and direct
an examination of the person injured, as to
the injury complained of, by a competent
physician or physicians, surgeon or surgeons,
in order to qualify the person or persons
Inaking such examination, to testify in the
said cause as to the nature, extent, and prob-[173]
able duration of the injury complained of;
and the court may in such order direct and
determine the time and place of such exami-
nation; provided, this act shall not be con-
strued to prevent any other person or phy-
sician from being called and examined as a
witness as heretofore."

The power of a circuit court of the United
States to order a surgical examination of the
plaintiff in an action for damages for a per-
sonal injury, in accordance with the provi-
NOTE.-A8 to right to physical cramination
before trial-see McQuigan v. Delaware. L. & impaneled, but before the case was opened

W. R. Co. (N. Y.) 14 L. R. A. 466, and note. As to examination of party before trial-see note to O'Connell v. Reed, 5 C. C. A. 602.

As to state laws as rules of decision in Fed. eral courts-see notes to Griffin v. Overman

Wheel Co. 9 C. C. A. 548: Wilson v. Perrin. 11

C. C. A. 71, and Hill v. Hite, 29 C. C. A. 553.

As to pleadings, practice, and procedure to conform "as near as may be"-see note to Re Secretary of the Treasury (C. C. 8. D. N. Y.) 11 L. R. A. 275. 177 U. S.

When the case was called for trial on
March 31, 1898, and after a jury had been

to the jury, the defendant's counsel asked in
open court that the plaintiff should submit
himself to examination by a competent sur-
The plaintiff would not consent, and
geon.
the plaintiff to subject himself to examina-
the court held that it had no power to order
tion by physicians against his will, and it
therefore refused to make the order asked
for by counsel for the defendant, who was
thereupon allowed an exception to the rul-

ing. The trial proceeded and resulted in a
verdict and judgment for the plaintiff. The
defendant brought the case by writ of error
before the circuit court of appeals, and that
court, desiring the instruction of this court
upon the matter, made the foregoing state-
ment and ordered the following questions to
be certifed here:

such statute to the trial of an action at common law.

"1. Is the above-recited statute of the state of New Jersey, the act of May 12, 1896, apture, like the law merchant, but simply one plicable to an action to recover damages for injury to the person brought and tried in the circuit court of the United States for the district of New Jersey?

"2. Is said statute applicable to an action to recover damages for injury to the person brought and tried in the circuit court of the United States for the district of New Jersey, where the injury occurred in the state of New Jersey, and both the plaintiff and the defendant at the time of the injury were citizens of that state?

"3. Had the circuit court the legal right or power to order a surgical examination of the plaintiff?"

Messrs. E. A. Armstrong and D. J. Pancoast argued the cause and filed briefs for plaintiff in error.

Mr. Howard Carrow argued the cause and filed a brief for defendant in error.

Contentions of counsel sufficiently appear in the opinion.

[174]. *Mr. Justice Peckham, after stating the ́facts, delivered the opinion of the court:

An answer to the third question, "Had the circuit court the legal right or power to order a surgical examination of the plaintiff ?" -will be all that is necessary for the action of the court below.

It is settled in this court that no power to make such an order exists at common law; in other words, the court has no inherent power to make it.

Neither the Constitution, treaties, nor statutes of the United States otherwise require or provide. The statute concerns the evidence which may be given on a trial in New Jersey, and it does not conflict with any statute of the United States upon that subject. It is not a question of a general naconcerning evidence based upon a local statute applicable to actions brought within the state to recover damages for injury to the person. The statute comes within the prin[175] ciple of the decisions of this court holding a law of the state of such a nature binding upon Federal courts sitting within the state. Swift v. Tyson, 16 Pet. 1, 18, 10 L. ed. 865, 871; Nichols v. Levy, 5 Wall. 433, 18 L. ed. 596; Watson v. Tarpley, 18 How. 517, 520, 15 L. ed. 509, 511; Ex parte Fisk, 113 U. S. 713, 28 L. ed. 1117, 5 Sup. Ct. Rep. 724.

It was held in United States v. Reid, 12 How. 361, 13 L. ed. 1023, that the provision of the law of Congress did not extend to criminal offenses against the United States, for that would be to give to the states the power of prescribing the rules of evidence in trials for offenses against the United States. tended to confer upon the courts of the It was said, however, that the section was inenable them to administer the laws of the United States the jurisdiction necessary to

states.

We are not aware of any reason why this law of the state does not apply to courts of the United States under the section of the Revised Statutes above quoted. There is no claim made that the statute violates the Federal Constitution, and we are of opinion that such a claim would have no foundation, if made.

Counsel for plaintiff refers in his argument to the opinion in the Botsford Case, where it is stated (at page 256, 35 L. ed. Union P. R. Co. v. Bots-739, 11 Sup. Ct. Rep. 1002), that the quesford, 141 U. S. 250, 5 L. ed. 734, 11 Sup. tion is one which is not governed by the law Ct. Rep. 1900. In that case there was no or practice of the state in which the trial is statute of the state in which the United had, but that it depends upon the power of States court was held which authorized the the national courts under the Constitution order. There is no intimation in the opin- and laws of the United States, and he argues ion that a statute of a state directly author-therefrom that the state statute is immaizing such examination would be a violation of the Federal Constitution, or invalid for any other reason.

In this case we have such a statute, and by section 721 of the Revised Statutes of the United States it is provided that "the laws of the several states, except where the Constitution, treaties, or statutes of the United States otherwise require or provide, shall be regarded as rules of decision in trials at common law in courts of the United States, in cases in which they apply."

Does not this statute of the state apply in trials at common law in the United States courts sitting in the state where the statute exists?

The case before us is a common-law action; it is one to recover damages for a tort, which is an action of that nature. It was being tried in the state which enacted the statute, and the court was asked to apply

terial, and can furnish no foundation for the
exercise of the power by the Federal court.
We do not dispute that if there were no law
of the United States which, in connection
with the state law, could be referred to as in
effect providing for the exercise of the power,
the court could not grant the order under
the decision in the case of Botsford. But we
say there is a law of the United States which
does apply the laws of the state where the
United States court sits; and where the state
has a law which provides for the making
of an order for the examination of the per-
son of a plaintiff in a case like this, the law
of the United States applies that law to
cases of such a nature on trial in Federal
courts sitting in that state. In the Bots-
ford Case there was no state law, and conse-
quently no foundation for the application of
the law of the United States.

*In Ex parte Fisk, 113 U. S. 713, 28 L. ed. [176]

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