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by fora'long time their franchises Qnd corporate rights. But they may contract debts, purchase on credit, and mortgage their personal property not affixed to the road, though used in operating it, as doing these things would be but the exerciseoford,inary powers.. The laws of Kansas granting to defendant the right to lease its road cannot operate beyond the sovereignty of Kansas. (SyllabUS b')J the Oo'Urt.)
At Law. This is' a suit brought by plaintiff to recover damages of defendant for the killing of his horses by the carelessness and negligence of defendant's agents or servants in running its engine and train of cars over said horses, when the same could have been avoided by the exercise of reasonablecare on the part of such agents or servants. The defendant filed its answer, dellying the allegations of plaintiff's complaint as to the negligent killing, arid setting up that before the killing Of said horses defendant had leased its road for 99 years to the Atchison, Topeka & Sauta Fe Railroad Company; that the control and management of said railroad was entirely in the hands 6f the lessee, and the running of trains over it waS by the agents and servants of the lessee, and the defendant had nothing to do with such control, management, or the running of trains on said road. The case W!l.S tried. Verdict for plaintiff. Defendant filed its motion for new trial, and in it complained specially that the court erred in instructing the jury that the lease of defendant to the Atchisori, Topeka & Santa Fe Railroud Company was unauthorized by law, and therefore void, and tnat, such lease being void, the lessor was not free from liability forthenegligel1t acts of the lessee. The motion for new trial was overruled. The other pointa raised in the case fully appear in the opinion of the court. Barne8,' Mellette Boudinot, for plaintiff. Duval Cravena, Goo. R. Peck, A. A. Hurd, and Robert Dunlap, for defendant. ·PARKER, I., (q,fter BfAting theJactJJ as above.) The first question is, did the eighth section of the act of congress of July 4, 1884, give the plain. tiff the rigbtto bring a suit in this court? The section is. ."That the United States circuit and district courts for the western district of Texas. the western district of Arkansas, and the district of Kansas, and such other courts as may be authorized by congress, shall have, without reference.to the amount in controversy, concurrent jurisdiction over all controversies arising between said I:)outhern Kansas Railroad Company and the nations and t.ribes throngh whose territory said railway shall be constructed. Such courts shall. have like jurisdiction, without referenl<e to the amount in 'controversy, over all controversies arising between the inhabitants of said nations or tribes and said railway company: and tile civil jurisdiction of said courlS is hereby extended within the limits of said Indian Territory, without diatjnctionas to citizenehipof the partiee, so far as lOay be necessary to carry out the provisions of this ,Counst:llfor.defendant. contend that the last clause of the section, towit,. so far: as may be necessary to carry out the provisions of this act," is' a limitation to the section of such a nature as to limit the jurisdiction of the fedeml·courtsto such controversies a& may arise between the
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tribes or m1tions through whose territory the road is constructed and the inhabitants of such tribes and nations to matters necessary to carry out the provisions of the act,-in other words, it limits it to such suits between the tribes and nations, or members of the tribes and natiOl)S, and the railroad company, as may arise under the act granting the right of way. and pertaining to the right of way, and damages for the same; and that the' same cannot be extended to a suit to recover for a common-law tort; a ,recovery upon which depends in no manner whatever upon the construction of the act granting the right of way to the railroad company. If this proposition is true, the nation or tribe, or the inhabitants thereof, were left by congress without Rny remedy for torts committed by the railroad .company; for, alii there is no remedy for torts such as was sued for in this case at the place where the. same was committed, there could be no remedy anywhere. Asthe plaintiff could not sue in the Indian country, he could not sue anywhere. Le Forest v. Tolman, 117 Mass. 109. It is there decided, by Justice GRAY, that to maintain an action .oftort founded upon an injury to person or property, and not upon a breach of contract, the act which is the cause of the injury and the foun,dation of the acti!,n must be actionable or punishable by the Jaw of the place in which it is done. The latest case on this subject is Carter v. Goode, 50 Ark. 156,6 S. W.Rep. 719, where the doctrine that is well ,sustained by American and English law, as announced in case of Le Forest v. Tolman, was fully and clearly recognized. Then the plaintiff w:as remediless, unless the provisions of this act gave him a remedy. Thenationsot'Indian,s whose lands the 120 miles of the Southern Kansas'Railroad passes have many rights that may be destroy.ed or affected by the tortious acts of·theqefendant. There are many resident Indians, and many lawful.residents in these nations who are not Indians. They have rights that may be affected or destroyed by the t01;ts of the defendant. Did congress intend that this road should obtain from the United States the franchise which gave it the right to build its .road, own it, run it, and reoeive its earnings, and the lawful residentaof this country, for a distance of 120 miles, were to be left without llrremedy for an injury to personal property, no matter how great the same might be,. CltUsell by the negligent and tortious conduct of defendant's agents? This is hardly to be presumed. Unless there is an entire absence of any language in the act which will, by a reasonable construction,warrant the conclusion that it was the purpose of congress to afford a remedy, ,the act must be construed to harmonize with the purpose of congress to promote the right and secul'ejilstice by affording a means of to the lawful inhabitants of these nations for a tortious act committed by defendant. The .language of the eighth section is: "Such courts, shall ha\'e like jurisdiction, without reference to the amount in controversy, over all controversies arising between the Inhabitants of said natiohs or . tribes and said railway company.'" Over all controversies is very com. prehensive. This is one of the, provisions of this act, to which jurisdic!tion, without ,distinction as to citizenship of parties, is extendeq to the 'courts to carry out!" Mr; Briscoe, the plaintiff, upon the proof, is ,an in-
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habitant of the Chickasaw nation. His Btatlt8 as such is defined by Bouvier, (volume 1, p. 709,) where he says: "An inhabitant is one who has his domicile in a place." Briscoe had his residence at Purcell, in the Chickasaw nation, and it was a legal residence, as he was living there upon a permit. That was his fixed abode. He had none other. Therefore he was an inhabitant by authority of the case of I'll re Wrigley, 4 Wend. 603, and in fact by all the authorities. To give this court jurisdiction, the right to claim it must grow out of the subject-matter. It must be a suit or a case arising under a law of the United States. When is it a suit arising under a law. of the United States? When it appears that some title, right, privilege, or immunity which the recovery depends will be defeated by one construction of a law of the United States, or sustained by the opposite construction. the case will be one arising under a law of the United States, and one of which the federal courts have jurisdiction, regardless of the citizenship of the parties. Cohens v. Virginia, 6 Wheat. 264; 08born v. Bank, 9 Wheat. 758; Starin v. New York, 115 U. S. 257, 6 Snp. Ct. Rep. 28, and authorities thttre cited; Inmmnce Co. v. WiBcon8in, U. S. 473, 7 Sup. Ct. Rep. 260. As far as this defendant has rights in the Indian country, it is equivalent to a corporation created by an act of congress; or, if this clj,nnot be Said to be trne, it is a recognition, to the extent provided by the act of oongress, of a corporation in existenne, having been created under the laws of Kansas; and upon this corporation, by this act of congress, there is conferred the right to build and run its road through the Indian country, and exercise:aU the ordinary powers incident thereto. Every right defendant has in the Indian country it obtained from the act of congress. This, by the doctrine of the case of 08born v. Bank, 9 Wheat. 739, raises a federal question. I think this doctrine is abundantly sustained by the Removal (Ja8e8, 115 U. S. 11,5 Sup. Ct. Rep. 1113. Mr. Justice BRADLEY I in these caSeS, saId: "The exhaustive argument of Chief JusticelrlARSHALL, in the Case of Osborn v. Bank, 9 Wheat. 738, *. * * renders any further discussion unto show that a suit by or against a corporation of, the United States 1s a suit arising under the laws of the United States." The case is one arising under a law of the United States, and conse{}uently there would exist a federal question. If a federal question exists when the corporation is one created under the laws of the United States, when a corporation already created under the laws of a state is permitted by an act of congress to enter a country over which the States has jurisdiction, and there to exercise the ordinary powers of a railroad corporation, this would create a federal question, as well as in the other case. But the fact that a federal q\lestion exists in tpe Case has a more reasonable foundation than Here is a right that for the first time becomes a perfect right by its receiving a legal recognition by the. provision, for the first time, of a remedy by this act of this time it was a remediless right, and, practically, was therefore no right, a is practicallyno right. Herearernedy
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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-