,', i'»bERAL REPOR'rER, vol. 40.
was for the fitst time given by a law of the United States, and thus the right, as haVing an existence, was for the first time recognized by the lawmakingpower,and provision was made by such powerforits enforcement. This gives the plaintiff aright or privilege which arises under a law of the United States, and gives him the right to come into the federal court to enforce the right, the same as though the right itself had been created by an act of congress. Why does not jurisdiction exist in a court of the United States as well where the act of congress for the first time gives a right of action as when it creates a. rig;ht? , In either case it is the ence of a claim.to a right or privilege that is founded upon a law of congress. In either case it is a case arising under a law of the United States. In such a case a party comes into court to demand something conferred on him by a law of congress. The proof in' this case shows that, before the killing of the horses of Briscoe, the Southern Kapsas Railroad Company had' lel1sed, for a period of 99 years, its road to the Atchison; Topeka & Santa Fe Railroad Company, a corporation created under the laws of Kanslls; that the management of the said Southern Kansas Railroad, and the rtinning of the same, was by the employes of the Atchison, Topeka & Santa Fe Railroad Compl1ny; that the defendant had nothing to do with the running of trains or the management of the foad in the Indian country; that for this reason the defendant is not liable to plaintiff. If the Southern Kansas Railroad Company had the proper legal authority to execute the lease made by it to the Atchison, Topeka: & Santa Fe'Railroad Company, and in pursuance of such authority it had made the lease. and turned over the control and management of the road to the lessee, I believe the true doctrine is that it would not be liil.blefor damages Cl\usedby the torts of the leseee. An authorized lease, without any exemption clause, absolves the lessor from the torts, of the lessee resulting from the negligent operation and handling of its trains, and the general management of the leased road, over which the lessor could have no control. Nugent v. Railroad Co., 6 Amer.St. Rep. 151, 12 AtLRep. 797. A railroad company whose road is operated by a lessee in the name of the lessor is liable to third persOIls for unless absolved therefrom by legislative authority. A rallroad company has no power to lease its road so as to relieve itself from liability for the non-performance of devolving upon it,in the absence of legislative authority, expressly' given. Railroad Co. v. Dunbar, 71 Amer. Dec. 291. The franchises of a railroad company.are intended to beexercisedJor the public good. This is why they are granted; A corporation cannot absolve itself from the performance of its obligations to the public without the consent of the legisll1ture, expressly given'. Singletcm. v.Railroa.dCo., 48 Amer. Rep. 574; Railroad Co. v. Barron; 5 Wall. 90. That the lessor is absolved from liability by legislative authority, in effect, when the lease is authorized by la.w, I believe to· be the true " ,. It isclaim'eclby defendalltthat it had authority to make the lease i that thisauthbrity is derived froth the act ofcongress' which authorized the bUilding of through the Indian and, if the author-
KAN. RY. CO.
ity is not to. be found there,. that it existed' by virtue of the authority of the laws of Kansas, under which it held. its charter. It is clear to my mind that the authority to lease is not given by the act of congresEl of July 4, 1884, which gave the defendant :the right to build its road through the lands of the Indian nations. This authority, under this :act. iSl claimed by virtue of the tenth section This section declares that"The said Southern Kansas Railway Company shall accept this right of way upon the express condition, binding upon itself, its successors and as· Signs, that they will neither aid, advise, nor 88sist in any effort tending towards t1).e changing or extingUishing of the present.tenure of the Indians in their land; and will not attempt to secure from the Indian nations any further grant of ll'md, or its occupancy. than is hereinbefore providtld." This is the only part of the act that mentions the word" assigns. " Tbere ilil no express power to lease the road in the act. The use of the word,S "assigns" and. "successors ,; in the tenth section of the act does not necess;trily imply that the corporation can transfer all of its property and llnqther corporation by lease. Railroad 0>. v. Railroad Co., 130U. :Sd,:·,9:$up,.Ct. Rep. 409; .. Rauroad 0<>., 101 U. S. 71; Railroad C'o.v.Railroad <;h., 118 U. S. 290, 6 SQP.Ct. Rep. 1094. By these aqth()rities the I>rinciple is enunciated"That. unless specially authorized by its charter, or aided by legislativ:e action .'3mill'oad company carmot,by lease or othe.J." (lQntract,turn over to compllny fOr l). long period of time its road, and all its appurteriances, .the. exercise of its powers; nor can any other the use of its franchises,. railroad company, without similar authority, make,a contract to seCllre and operate such franllhises, and property of 'the first corporation ; and that such a contract is not among the ordinary powers of tli'aill'Oad company, and . it: not to· be presumed ,from the usual .grantof powers in a railroad' char"ter,;"'. :. . Under this rule there is clearly 110 right given to the Southern Kansas Railroad' Company by the act 'of congress to lease 'its road. It simply recognizedlhe existence' of this company as aRansas corporation, and gave. it. certain rights in the Indian countIj",-such as the right to build its road through such country, and exerCise all the ordinary powers incident to the ownership,constiuction, and operation of its road. ' gives it the right to lease its , But it is claimed that its Kansas 'road. If this road was in Kansas. the position would be well taken. The power to lease the road in Kansas would exist. I. A state cannot,' by chartering l\ corpora:Uon, confer upon it a legal right to act within the jurisdiction of another state." 2 Mol'. Priv. Corp;' § , It is a principle that the ISiwS of a state can have no bindof ing forGe pnoprio vigoreout!1ide of the territorial limits and the state enacting them. Section 959, ld. The cbarterofthis rQad, or the laws of Kansas under which it exists, does nQt give it therip;ht to its powers beyond the state of ;Kansas. Its powers. under its :' KllnsaSGhart.ercannot be. cpuntry unleBfJ :permitto be by lWt QJ congress; they. can be (:fxex:cised only
, to the extent 80 permitted. In the case of Runyan v. Glster's Lessee, 14 Pet. 122', and.in Bank v. Earle, 13 Pet. 519, the supreme court of the United States said: "Every power which a corporation exercises in anotber state depends for its validity upon tbe laws of the sovereignty in which it is exercised." It was further held, in the above cases, that a corporation can make ao valid contract without the sanction, express or implied, of the laws of such sovereignty. It is decided in Bank v. Earle, 13 Pet. 524, that courts of justice have always expoundedaud executed contracts according to the law of the place in which they were'made, provided that the law was notrept'lgnant to the laws or policy of their own country. The court, in the above case, held the rule to be "that, by the comity of nations, foreign corporations are allowed to make contracts under their respective limits not contrary to the known policy of stich nations, or injurious to their -interests. » This gives a railrooo corpOration the' right to exercise all its ordinary powers growing out of.its franchise, such as making contracts in regard to the transaction of its business, as was the case in Railroad 00. v. ,Gebhard, 109 U. S. 527,' 3 Sup. Ct. Rep. 363. But when it undertakes by a lease of its road to get rid of its responsibility or liabilities to the public, which it assumed when it accepted the franchise, it would be exercising an extraordinary power, which may be greatly' prejudicial to the public, and therefore is contrary to the known policy of a sta.te, and injurious t6 its interests, and cannot be exercised unless the state, by express authority conferred, authorizes it to be done. The execution of Ii' contract of lease by the defendant by which it parted with its franchise for three generations is not, among its ordinary :powers. I take the rule to be, in this country, that the ordinary powera vested by the law of its oreation may be exercised anywhere by the rule of comity. The granting of this franchise in the Indian country by congress was the granting of a right in which the public has a large interest. Railroad companies being public corporations so far as to be subjected to control by legislation, they can do no ,act which, would amount to a ,renunciation of their duty to the public, or and necessarily disable them from performing it. They cannot, therefore, , convey away their franchise,s and corporate rights. :But they may "contract debts,purchase on mortgage their personal property not affixed to the road, though used in operating it,"as these would be but the exercise of their ordinary powers. 1 Wat. Corp. 589. There is nothing in theac! of congress authorizing the defendant to build its road permitting it to, lease it. The laws of Kansas granting the extraordinary power to defendant to lease its road cannot operate beyond the sovereigntyof Kansas. Before defendant could lease its road in the Indian 'country it must have the consent of the other party to the contract,the United States. This consent must be expressly given. It might be given :by the act ofcongress directly, by the use of appropriate words in the act, or by the adoption of the power in the Kansas charter; but it has done neither, and therefore, as far as the public is concerned, it does not . eXist., I am not deciding what these two companies may do as affecting