
    The Railway Passenger Assurance Company of Hartford, Connecticut v. Elijah A. Pierce.
    The Supreme Court of the United States having decided (20 Wallace, 445) that a statute of a state which requires a foreign insurance company, before transacting business in the state, to waive its right to remove suits in which it is a party from the courts of the state to the Eederal courts, is repugnant to the constitution and iaws of the United States and therefore void — that decision will be followed, though not approved by this court.
    Error to the Court of Common Pleas of Ashtabula county. Reserved in the District Court.
    The action in the court below was brought by defendant in error upon two tickets or policies of insurance against accident-, issued to him by the plaintiff’in error on the 17th day of August, 1868, at Ashtabula, Ohio. The accident on account of which a recovery was sought occurred on the same day. Suit was commenced June 8, 1869, and the sum demanded was $1,300, with interest.
    The plaintiff in error entered its appearance in the case November 18, 1869, by filing its petition in due form, alleging that it was a corporation created by the laws of Connecticut, and was a citizen of that state ; that the plaintiff in the action-was a citizen of Ohio; that the matter in dispute exceeded the sum of $5Q0 ; that it had not theretofore appeared in the action; and, tendering a proper undertaking in that behalf, prayed for the removal of the case to the Circuit Court of the United States for the Northern District of Ohio.
    To this petition the plaintiff below answered, denying the right of removal as prayed for, by reason that the defendant below had waived its right as such foreign corporation, so to remove the case, by filing m the office of the auditor of state of the State of Ohio, on the 3d day of March, 1869, its waiver aud relinquishment of such right, pursuant to the statute of the State of Ohio in such case made and provided.
    The court, on the hearing of this petition, found that the facts stated therein were true; that the undertaking tendered was satisfactory, and also that a waiver of the right to remove the case had been duly executed and filed, as averred in the answer to said petition, and for that reason alone denied the prayer of the petition; to which action of the court the plaintiff in error excepted, and answered in the case under protest.
    The case was'twice tried by a jury, and the defendant in error finally obtained a verdict and judgment for more than $1,400.
    The plaintiff in error thereupon filed its petition in the District Court to reverse this judgment, on the ground of error in refusing to grant its petition for the removal of the case to the Circuit Court. By order of the District Court, the case was reserved for the decision of the Supreme Court.'
    
      
      Ij. S. Sherman and. G. L>. Rockwell, for plaintiff in error :
    T.lie court erred in refusing to make an order to remove the case and holding jurisdiction of the same. The company did not waive its right to such removal by virtue of the instrument in writing filed by it in the office of the auditor of state, in pursuance of the provisions of section 24 of the statute. S. & S. 217.
    The cause of action in this case occurred August 18, 1868, but the said section 24, as amended, did not take effect until January 1, 1869. The law ought not to have a retroactive operation. To give it such a construction would take away a substantial vested right of the company, to wit, the right to have its case adjudicated in the United States Court.
    Congress, by section 12 of the judiciary act of 1789, gave this right, and we submit that a state legislature has no constitutional power to enact any law abridging the rights of the citizens under it.
    If the party availing himself of the provisions of this act has in all respects .complied with its terms, it is the duty of the state court to order the removal. Gordon v. Longest, 16 Peters, 105; 2 Hands, 154.
    The company being a foreign corporation, and therefore a citizen, for the purpose of attaching jurisdiction to the United States courts, is entitled to all the rights that would belong to the natural citizen in respect to the right of removal.
    
      Theodore Hall, for defendant in error:
    1. The petition to remove came too late. The parties appeared in the case at the May term, 1869, by motion for a continuance. The petition to remove was not filed till November 19, during the October term, 1869. The petition must be the first appearance in the case. Section 12 Judiciary act of 1789, 1 U. S. Stat. at Dargé, 79.
    2. The right to remove the case was expressly waived by. the company, March 3, 1869, by the instrument by it filed
    
      with the auditor of state. N. Y. Ins. Co. v. Best, 23 Ohio St. 105.
    This court is not bound by the decision in 20 Wallace, 445. See 7 Ohio St. 483; 9 Ohio St. 606.
   Scott, Chief Judge.

The decision of this case depends on a single question : Is a statute of Ohio, which requires a foreign insurance company, as a condition precedent to its right to transact and carry on business within this state, to “waive all claim or right • to transfer or remove any cause then or thereafter pending in any of the courts of this state, wherein such company may' be a party, to any of the courts of the United States,” repugnant to the constitution and laws of the United States, and therefore void? If such statutory requirement be valid, the judgment of the Court of Common Pleas in this case should be affirmed; otherwise it was without jurisdiction, and must be reversed.

The validity of such state legislation was affirmed by the Supreme Court of this state in the case of N. Y. Life Ins. Co. v. Best et al., 23 Ohio St. 105. A majority of this court fully approve that decision. We think it based upon well-established principles and reasons which can not be successfully controverted. It is unnecessary to restate them. But the Supreme Court of the United States has recently decided the question otherwise, Chief Justice Waite and Judge Davis dissenting. Home Ins. Co. v. Morse, 20 Wallace, 445. We recognize that court as the tribunal of last resort in cases depending on the question before us. Whilst it is true, as was said in the case of Skelly v. The Jefferson Branch of the State Bank of Ohio (9 Ohio St. 606), that the decisions of the Supreme Court of the United States, though entitled to the highest respect, do not bind and conclude the judgment of a state court as the decision of a superior upon an inferior court of the same system; yet it would practically be useless to adhere to our convictions, unless there were reasons to expect that the question, when again presented to that court, would be decided differently.

We think it advisable, therefore, to follow, though we do not approve, the decision of the Supreme Court of the United States, to which we have referred; and the judgment of the Court of Common Pleas in the case before us will therefore be reversed.

Day, Wright, and Ashburn, JJ., concurred.

Johnson, J.

I concur in the decision just announced, but not in so much of the reasons given as hold that the decision of the Supreme Court of the United States is followed from considerations of expediency.

The Supreme Court of the United States is the tribunal provided by the constitution of the United States to determine, in the last instance, questions arising thereunder, and its decision, deliberately made, holding that a state law is in conflict with the provisions of that instrument, is, until reversed, authoritative, and should be followed by the state court, unless it desires again to invoke a reconsideration of the question by the Supreme Court of the United States.  