MARIA GUISEPPA RAFFAELA MAIORANO, Plff. in Err., v. BALTIMORE & OHIO RAILROAD COMPANY.

The husband of the plaintiff in error was killed while a passenger on a train by the negligence of the defendant. The death occurred within the state of Pennsylvania, and this action was brought in a court of that state to recover damages for it. The plaintiff was a resident of Italy and a subject of the King of Italy. By the statutory law of the state of Pennsylvania (act of April 15, 1851, P. L. 669, &Par;18 and 19, as amended by the act of April 26, 1855, P. L. 309, ¶1), the right to recover damages for death occasioned by unlawful violence or negligence is, in certain cases, conferred upon the husband, wife, children, or parents of the person killed. By its literal terms the benefits of the statute are extended to all such surviving relatives, irrespective of their condition. It has, however, been held by the supreme court of Pennsylvania, in the case of Deni v. Pennsylvania R. Co. 181 Pa. 525, 59 Am. St. Rep. 676, 37 Atl. 558, as well as in the case at bar, that this statute does not give to relatives of the deceased, who are nonresident aliens, the right of action therein provided for. There is nothing in this case to take it out of the general rule that the construction of a state statute by the highest court of the state must be accepted by this court. It is therefore not material that similar statutes have been differently construced, as, for instance, in Mulhall v. Fallon, 176 Mass. 266, 54 L.R.A. 934, 79 Am. St. Rep. 309, 57 N. E. 386, and Kellyville Coal Co. v. Petraytis, 195 Ill. 217, 88 Am. St. Rep. 191, 63 N. E. 94.

The plaintiff rests her right to recover not upon this statute alone, but upon certain provisions of a treaty between the United States and the King of Italy, ratifications of which were exchanged on November 18, 1871. 17 Stat. at L. 845. She asserts that the effect of the treaty was to confer upon the plaintiff the same right to recover damages for the death of her husband that she would have enjoyed by the statute of the state of Pennsylvania if she had been a resident and citizen of that state. The contention of the plaintiff in this respcet was denied by the trial court, which granted a judgment of nonsuit, which was affirmed by the supreme court of the state, and is now here on writ of error. The only question for our decision is whether a proper interpretation and effect were allowed to the treaty.

We do not deem it necessary to consider the constitutional limits of the treaty-making power. A treaty, within those limits, by the express words of the Constitution, is the supreme law of the land, binding alike national and state courts, and is capable of enforcement, and must be enforced by them in the litigation of private rights. Ware v. Hylton, 3 Dall. 199, 1 L. ed. 568; United States v. The Peggy, 1 Cranch, 103, 110, 2 L. ed. 49, 51; Foster v. Neilson, 2 Pet. 253, 314, 7 L. ed. 415, 435; Hauenstein v. Lynham, 100 U. S. 483, 25 L. ed. 628; per Mr. Justice Miller, in Head Money Cases (Edye v. Robertson) 112 U. S. 580, 598, 28 L. ed. 798, 803, 5 Sup. Ct. Rep. 247, quoted with approval by Mr. Chief Justice Fuller in Re Cooper, 143 U. S. 472, 501, 36 L. ed. 232, 241, 12 Sup. Ct. Rep. 453; United States v. Rauscher, 119 U. S. 407, 418, 30 L. ed. 425, 428, 7 Sup. Ct. Rep. 234; Geofroy v. Riggs, 133 U. S. 258, 33 L. ed. 642, 10 Sup. Ct. Rep. 295.

We put our decision upon the words of the treaty. By a fair interpretation of them, did they directly confer upon the plaintiff the right which she seeks to maintain? We are of the opinion that they did not.

Three articles only are relied on as material. They are:

'Article 2.

'The citizens of each of the high contracting parties shall have liberty to travel in the states and territories of the other, to carry on trade, wholesale and retail, to hire and occupy houses and warehouses, to employ agents of their choice, and generally to do anything incident to or necessary for trade, upon the same terms as the natives of the country, submitting themselves to the laws there established.

'Article 3.

'The citizens of each of the high contracting parties shall receive, in the states and territories of the other, the most constant protection and security for their persons and property, and shall enjoy in this respect the same rights and privileges as are, or shall be, granted to the natives, on their submitting themselves to the conditions imposed upon the natives.'

'Article 23.

'The citizens of either party shall have free access to the courts of justice, in order to maintain and defend their own rights, without any other conditions, restrictions, or taxes than such as are imposed upon the natives. They shall, therefore, be free to employ, in defense of their rights, such advocates, solicitors, notaries, agents, and factors as they may judge proper, in all their trials at law; and such citizens or agents shall have free opportunity to be present at the decisions and sentences of the tribunals in all cases which may concern them, and, likewise, at the taking of all examinations and evidences which may be exhibited in the said trials.'

Article 23 bestows upon citizens of either power, whether resident or nonresident, free access to the courts, 'in order to maintain and defend their own rights,' with the ancillary privileges of suitors. This article does not define substantive rights, but leaves them to be ascertained by the law governing the courts, and administered and enforced in them.

Articles 2 and 3 deal with the rights of the citizens of one party sojourning in the territory of the other. There seems to be nothing pertinent to the case in article 2. But special stress is laid upon article 3, which stipulates for the citizen of each, in the territory of the other, equality with the natives of rights and privileges in respect of protection and security of person and property. It cannot be contended that protection and security for the person or property of the plaintiff herself have been withheld from her in the territory of the United States, because neither she nor her property has ever been within that territory. She herself, therefore, is entirely outside the scope of the article. The argument, however, is that if the right of action for her husband's death is denied to her, that he, the husband, has not enjoyed the equality of protection and security for his person which this article of the treaty assures to him. It is said that if compensation for his death is withheld from his survising relatives, a motive for caring for his safety is removed, the chance of his death by unlawful violence or negligence is increased, and thereby the protection and security of his person are materially diminished. The conclusion is drawn that a full compliance with the treaty demands that, for his protection and security, this action by his surviving relatives should lie. The argument is not without force. Doubtless one reason which has induced legislators to give to surviving relatives an action for death has been the hope that care for life would be stimulated. This thought was dwelt upon in Mulhall v. Fallon, supra, in considering a statute which made the amount recoverable dependent upon the degree of culpability of the negligent person. Another reason for such legislation, quite as potent, was the desire to secure compensation to those who might be supposed to suffer directly and materially by the death. This thought seems to have been uppermost in Pennsylvania, according to the courts of that state. See Chambers v. Baltimore & O. R. Co. 207 U. S. 142, 52 L. ed. 143, 28 Sup. Ct. Rep. 34, and cases cited. Without dwelling further upon the purpose and effect of legislation of this kind, and assuming that both might be calculated in some degree to increase the protection and security of persons who may be exposed to dangers, we are of opinion that the protection and security thus afforded are so indirect and remote that the contracting powers cannot fairly be thought to have had them in contemplation.

If an Italian subject, sojourning in this country, is himself given all the direct protection and security afforded by the laws to our own people, including all rights of actions for himself or his personal representatives to safeguard the protection and security, the treaty is fully complied with, without going further and giving to his nonresident alien relatives a right of action for damages for his death, although such action is afforded to native resident relatives, and although the existence of such an action may indirectly promote his safety.

Judgment affirmed.