(dissenting). — Suit was begun against the St. Louis Transit Company and the United Railways Company, as joint owners and joint operators of the Eighteenth street line of railroad, in the city of St. Louis. The petition alleged that through the negligence of these two companies in operating one of their cars, on said Eighteenth street line, upon which plaintiff was a passenger, she was injured. The answer was a general denial.
Plaintiff’s evidence shows negligence in the operation of a car, on which she was a passenger, on said line, causing injury to her. It is admitted that the Transit Company alone operated the car. To connect the other defendant with the Transit Company in the operation of the car, or to make it liable for the negligence of the Transit Company, the plaintiff offered in evidence the following contract of lease and showed that the Eigh*605•teenth street line of railroad is included in the terms of the lease.
“Contract of the Lease between United Railways of St Louis and St. Louis Transit Company:
“This agreement made and entered into between the United Railways Company of St. Louis, hereinafter called ‘United Railways/* a corporation duly organized and existing under the laws of the State of Missouri, party of the first part, and the St. Louis Transit Company, hereinafter called ‘Transit Company/ also a corporation duly organized and existing under the laws of the State of Missouri, party of the second part, witnesseth, that
“Whereas, ‘United Railways’ is the owner of several lines of railway in the city and county of St. Louis, in the State of Missouri, and of certain bonds and stocks more specifically described in a certain deed of trust to the St. Louis Trust Company, bearing date September 20, A. D. 1899, and is willing to lease all of its said lines of railway lying and being situated in the city and county of St. Louis, including all the property and franchises appurtenant thereto, together with all income to be derived from said bonds and stocks to ‘Transit Company’ for the period beginning on the first day of October, A. D. 1899, and ending on the first day of April, A. D. 1939, upon the terms and conditions hereinafter stated; and
“Whereas, Transit Company is desirous of acquiring the said lines of railway including all the property and franchises appurtenant thereto, together with any and all income derived from the ownership of the bonds and stocks now owned by United Railways or which it may hereafter acquire during the term of this lease.
“Now, therefore, this agreement witnesseth, that United Railways for and in consideration of the covenants and agreements hereinafter contained on the part of the Transit Company, to be by it made, kept and pea?*606formed, has granted, demised and leased, and by these presents does grant, demise and lease, nnto Transit Company, all of the railways now constructed, owned or operated by it, or which may be hereafter constructed, owned or operated by it, and all its rights, title and interest in and to all its property, real, personal and mixed, now held by it, as owner or otherwise, with all franchises of every sort and kind, to it now belonging, or which it may hereafter acquire, as fully as it now holds, or owns, or may acquire the same, together with all income derived from any bonds or stocks now owned by the United Railways, or which m,ay be hereafter acquired by it, provided, always, however, that nothing herein contained shall operate to grant or demise, or be construed to include, the franchise to be a corporation heretofore granted to the said party of the first part, or any other right, privilege or franchise, which is, or may be, necessary to preserve the corporate existence or organization of the party of the first part under its charter, and all the rights, privileges and franchises last aforesaid are hereby expressly reserved and excepted from these presents.
“To have and to hold said demised property, real, personal and mixed, with the franchises unto Transit Company, its successors and assigns, for the full term from the first day of October, A. D. 1899, until the first day of April, A. D. 1939.
“In consideration of the premises United Railways covenants and agrees that Transit Company, its successors and assigns, shall, at all times during the term aforesaid, have full and exclusive power, right and authority to use, manage and operate the said railways of United Railways and shall have the right to fix the tolls thereon, but not at a higher rate than United Railways is authorized so to do; and further, that Transit Company shall have the full, free and exclusive right to charge and collect all the tolls to accrue from the railways *607of United Railways daring the said term and appropriate the same to its own use, and shall have, use and exercise all the rights, powers and authorities aforesaid, and all other lawful powers and privileges which can belawfully exercised and enjoyed on or about the said demised railways, properties, franchises and premises, as exclusively, fully, amply and entirely as the same might or could have been used by United Railways had this lease and contract not been made. ■
“And in consideration of the premises Transit Company has agreed, and does by these presents agree, to and with United Railways as follows, to-wit:
“1. That it, Transit Company, shall and will during the continuance of this lease, at its own proper cost and expense, and without deduction from the rent herein provided to be paid, maintain, operate, work, use and run, and keep in public use the said demised railways in the same manner as United Railways, as the owner orlessor thereof, is now, or at any time hereafter may be required to do. And Transit Company shall and will, at its own proper cost and expense and without deduction from the rent herein provided to be paid, at all times, during the continuance of this lease, maintain, operate and keep the railways, property and premises hereby demised, and every part of the same, in good repair, working order and condition, and supplied with rolling stock and equipment, so that the business of said demised railway shall be increased and developed. And Transit Company hereby agrees and promises to and with Railways Company, that it, Transit Company, shall and will, at its own proper cost and expense, and without deduction from the rent aforesaid, from time to time, during the term aforesaid, do, or cause to be done, to and upon the said demised premises and railways, any and all repairs and replacements and any and all additions thereon and improvements which may be reasonably required for the purposes aforesaid, and provide *608thereon such new and additional rolling stock, equipments and other appliances, as shall and may he reasonably required for the purpose aforesaid; and Transit Company shall and will use all reasonable efforts to maintain, develop and increase all the business of the railways hereby demised.
“Transit Company shall and will keep a complete and accurate record of all additions, acquisitions, betterments, and improvements made by it upon said demised premises and property and the amounts of money expended therefor, and shall, from time, to time file the same with Railways Company, and thereupon, when requested by resolution of the board of directors of Transit Company, Railways Company will deliver to Transit Company, or its order, any of its unissued first general mortgage bonds at par on payment for the money so expended, which it would be authorized to use, for the same purpose under the terms and conditions of the mortgage securing said bonds; or, in' payment for said sums of money so expended by Transit Company, Railways Company will deliver at par, when requested, as aforesaid, to Transit Company any of its unissued preferred or common stock.
“And Transit Company will indemnify, save and keep harmless, during the continuance of this lease, United Railways from all costs, charges and expenses arising from the management and operation of said railways, and all matters incident thereto.
“2. That Transit Company shall pay to Railways Company a net annual rental of five dollars per share upon all the preferred stock of Railways Company, now outstanding or which may hereafter be issued by Railways Company with the consent of Transit Company; said rental shall be payable quarterly on the tenth days of January, April, July and October during each and every year hereafter for the full period of this lease, provided, however, that the first quarterly payment shall be *609made on the tenth day of April, 1900. Payments of the rental herein provided for shall be made at the office of the Transit Company in the city of St. Louis, or at the agency of the Transit Company in the city of New York, either or both, as Transit Company, shall from time to time, determine.
“3. That in addition to the rental provided to be paid by Transit Company in paragraph two of this lease, Transit Company shall pay to the United ’ Railways the further sum of one thousand dollars per annum, for the purpose of defraying the expense of maintaining the corporate existence of the railway and traction companies connected with, or interested in, the properties and franchises herein mentioned, which sums shall be paid semiannually in equal installments at the times and at the place or places hereinabove provided for the payment of the rental.
“4. That in addition to the amounts hereinabove provided to be paid by Transit Company to United Railways in paragraphs two and three hereof, Transit Company hereby assumes and agrees to pay all the floating debts of United Railways when and wherever the same may become due and payable.
“5. That Transit Company shall and will also during the continuance of this lease, pay all taxes and assessments and water rents which may be assessed upon the real estate, personal property, franchises, capital stock, business, rental, income, dividends and indebtedness of United Railways, or any of the lines of railways or property leased or operated by it.
“6. That Transit Company shall and will also pay the interest accrued, and to accrue, as the same becomes respectively due and payable, on all the bonds heretofore issued, and now outstanding, by Railways Company, or any of the subordinate companies whose property and *610franchises Railway Company has acquired, said bonds being as follows:
“The Missouri Railroad Company five per cent bonds, of date February 27, 1896, due March 1, 1906, seven hundred thousand dollars.
“The Forest Park, Laclede & Fourth Street Railroad Company seven per cent bonds, of date May 1, 1885, due June 1, 1900, ninety-two thousand and one hundred dollars.
“The Lindell Railway Company five per cent bonds, of date August 1, 1891, due August 1, 1911, one million five hundred thousand dollars.
“The Compton Heights, Union Depot & Merchants Terminal Railroad Company six per cent bonds, of date July 1, 1893, due July 1, 1913, one million dollars.
“The Taylor Avenue Railway Company six per cent bonds of date July 1, 1893, and due July 1, 1913, five hundred thousand dollars.
“The Union Depot Railroad Company six per cent bonds, of date October 1,1890, due October 1,1910, seven hundred and ninety-one thousand dollars.
“The Union Depot Railroad six per cent bonds, of date June 1, 1893, due June 1, 1918, two million four hundred and nine thousand dollars.
“The Mound City Railway Company (road subsequently acquired by Union Depot Railway Company) six per cent bonds, of date October 1,1890, due October 1,1910, three hundred thousand dollars.
“The Jefferson Avenue Railroad Company five per cent bonds, of date November 2, 1895, due November 2, 1905, two hundred and seventy-seven thousand dollars.
“The People’s Railway Company (property now owned by St. Louis Traction Company) six per cent bonds, of date May 1, 1882, due May 1, 1902, one hundred and twenty-five thousand dollars.
“The People’s Railway Company (property now owned by St. Louis Traction Company) seven per cent *611bonds, of date May 1, 1886, dne May 1, 1902, seventy-five thousand dollars.
“The Southern Electric' Railroad Company six per cent bonds, of date May 1, 1884, due May 1, 1904, one hundred and sixty-fonr thousand dollars.
“The Southern Electric Railroad Company six per cent bonds, of date May 6, 1890, due May 1, 1915, three hundred and thirty-six thousand dollars.
“The Southern Electric Railroad Company five per cent bonds, of date August 1, 1896, due August 1, 1916, two hundred thousand dollars.
“The Cass Avenue and Fair Grounds Railway Company five per cent bonds, of date July 1, 1892, due July 1, 1912, one million eight hundred and thirteen thousand dollars.
“The Citizens Railway Company six per cent bonds, of date July 1, 1887, due July 1, 1907, one million five hundred thousand dollars.
“The United Railways Company of St. Louis first general mortgage four per cent bonds, of date September 20, 1899, due July 1, 1934, twenty-three million dollars; and Transit Company shall and will also pay-all interest that shall accrue upon all further issue of said first general mortgage bonds issued by Railways Company, under the terms and conditions of the said mortgage deed of indenture securing the same.
“7. That Transit Company shall and will, at all times, keep the property of Railways Company insured against loss by fire, paying the premiums therefor from its own funds, and will, at the expiration of this lease and contract, yield and deliver up the hereby demised railways and properties and their appurtenances, in the same good order and repair as the same are now in, or may be put in during the hereby demised term (reasonable wear and tear excepted), excepting any property sold in accordance with this agreement and contract.
*612“8. That Transit Company shall and will during the continuance of this lease apply all net surplus earned by it over and above the six per cent annual dividend upon the $20,000,000 of capital stock which Transit Company is now authorized to issue, or so much thereof as may from time to time be outstanding, to the betterment, improvement, or extension of the property or raiíAvay lines now owned, or Avhich may hereafter be acquired by Railways Company, or to the redemption, payment or retirement of the mortgage indebtedness of Railways Company or of its subordinate companies. In ease Transit Company shall purchase out of said surplus earnings any of the underlying bonds issued by any of the subordinate companies, whose property, franchises or stock has been acquired by Railways Company, Transit Company shall have the same right to use the first general mortgage four per cent bonds, which Railways Company, under its mortgage, is authorized to receive in exchange from said underlying bond's of said subordinate companies, in the same manner and to the same extent as Railways Company would have the right under said mortgage to use the same, the Railways Company shall and will do all things requisite or necessary on its part to be done to carry this provision into full force and effect.
“9. That Transit Company shall and will apply all moneys received by it from Railways Company at the time that this lease goes into effect, save and except what may be necessary to meet current liabilities, including interest accrued upon all mortgage indebtedness, to the improvement of the premises hereby demised and shall make like disposition of all moneys that Transit Company may subsequently receive from Railways Company through, the sale of property that may become useless in the conduct of the business of Railways Company; and Railways Company shall and will turn over to Transit Company all moneys of every character in its pos*613session, or to which it may be entitled, at the time that this indenture goes into effect, and all other moneys that it may subsequently become possessed of from any source whatever, during the term of this lease.
“10. That it is the purpose and understanding of the parties hereto that these presents shall go into effect immediately upon their execution and delivery, and all the rights and liabilities of the parties hereto, as herein assumed, covenanted for and agreed to, shall, upon due execution and delivery hereof, become fixed and ascertained, United Railways Company turning over all assets of every character to Transit Company, and Transit Company assuming all liabilities of every character of United Railways.
“11. That United Railways shall and will, during the term of this contract, maintain its corporate existence and organization, and at all times, from time to time, during the said term, and when requested by Transit Company, its successors or assigns, shall and will put in force and exercise each and every right, and do each and every corporate act, which it may now, or at any time hereafter, lawfully put in force, or exercise, to enable Transit Company to enjoy and avail itself of every right, franchise and privilege in respect to the use, management, renewal, extension or improvement of the premises herein described, or intended so to be, or the business to be carried on, Transit Company agreeing to indemnify and save harmless United Railways against all expense, loss, damage or liability for such exercise of corporate power or performance of .corporate acts when exercised or done at the request of Transit Company.
“12. That in case Transit Company, its successors or assigns, shall, at any time or times hereafter, during the continuance of this lease, fail, or omit to pay, as the same becomes due and payable, the interest due upon any of the bonded indebtedness recited in section six *614of this lease, or in case Transit Company, its successors or assigns, shall fail or omit to pay the floating indebtedness hereinbefore mentioned and provided to be paid by Transit Company, its successors or assigns, or any part thereof, when the same shall become due and payable, as hereinbefore specified, then immediately upon the happening of such event, it shall be lawful for United Railways, at its'option, to treat this lease as forfeited; or in case Transit Company, its successors or assigns, shall fail or omit to keep and perform the covenants and agreements herein contained, or any of them, and shall continue in default in respect to the performance of such covenants or agreements for the period of sixty (60) days, then and in either and every such case it shall be lawful for United Railways, its successors or assigns, to treat this lease as forfeited; and in case United Railways shall, for any such cause, decide to treat the lease as forfeited, it shall be lawful for United Railways, its succesors, or assigns, at its own option, to enter at once upon the railways and premises hereinbefore demised, and along and upon every part thereof, and remove all persons therefrom, and from thenceforth the said demised railways and premises, with the equipments and appurtenances thereof, to have, hold, possess and enjoy as of the first or former estate of United Railways in the said demised premises, and upon such entry for non-payment of the interest on the bonded indebtedness as above provided, or for non-payment of the floating indebtedness as herein provided, for non-payment of rent, or breach, or non-performance of any covenant or agreement therein contained to be by Transit Company, its successors or assigns, observed or performed, all the estate, right, title, interest, property, possession, claim and demand whatsoever of Transit Company, its successors or assigns, in or to the addition and improvements above mentioned, and in or to the same demised railways and premises, or either, or any part of them, as well as all the right, title *615and interest of Transit Company, its successors and assigns, in, under and by virtue of this lease, shall wholly and absolutely cease, terminate and become void, anything hereinbefore contained to the contrary in anywise notwithstanding.
“And in case of the re-entry aforesaid, the floating indebtedness, interest and rent provided herein to be paid, shall, up to and until the date of re-entry, be deemed and taken as due and payable, and the same shall be paid by the Transit Company, its successors and assigns.
“And it is further declared and agreed that such re-entry shall not waive or prejudice any claim or right of Railways Company, its successors or assigns, for damages against Transit Company, its successors or assigns, on account of such non-performance or breach of any of the terms of this lease; and all such claims and rights are hereby expressly preserved to the said Railways Company, its successors or assigns.
“13. That all cars, machinery, tools, appliances, etc., generally called personal property, of every sort and kind belonging to the United Railways Company, or held by it as lessee, shall, when this lease goes into effect, be delivered to Transit Company. The same shall be valued by mutual agreement, and, in case said parties cannot agree as to the value, then by appraisers to be appointed in the manner hereinafter provided. In case of the termination of this lease and contract for any cause, Transit Company shall return the said property as inventoried and appraised, in as good order and condition as when received, or the equivalent thereof, or pay the amount of such valuation to United Railways, with interest from the date of the termination of this lease.
“14. Upon the termination of this lease, for any cause arising from breach of covenant by Transit Company, all such property necessary to the operation of the. lines of United Railways-, as enumerated in section 13 of *616this agreement, and all betterments to the property that may be made by Transit Company, by which is meant all cars, tools, tracks, rails, roadbeds, wires, poles, motors and appliances that may by Transit Company be put upon the lines and property of United Railways, and necessary to the operation of the said road, shall become the property of United Railways.
“15. That Transit Company shall, at all times, keep at its office in the city of St. Louis, full, true and just accounts of any and all moneys received and business done upon the said demised railways, and of all moneys paid, laid out and expended, all liabilities incurred in connection with the same. The accounts to be kept by Transit Company as above provided, and any and all accounts which shall, and may be kept, in relation to the said demised railways, or the business of the same, shall, at all reasonable hours and times during the continuation of this lease, be open to the inspection and examination of the president of the United Railways and such other person or persons as United Railways shall, from time to time, by resolution of its board of directors, appoint to examine the same.
.“16. That all differences which may arise between the parties hereto at any time hereafter, as to the construction of this agreement, or as to the due performance of any covenant herein contained, or as to the value of ■any property to be allowed by either to the other, shall be conclusively settled by the decision of the three arbitrators, or by a majority of them in case of disagreement; such arbitrators to be chosen in the manner following, to-wit: Railways Company shall select one of the arbitrators and-Transit Company shall select one, and the two thus chosen shall select a third. - In case either party shall fail to select an arbitrator for the period of ten days, after a request in writing delivered to the president, then the arbitrator appointed by the party not in default shall select an arbitrator for the defaulting *617party, and these two shall proceed as herein provided in case of the selection by each party.
“17. That all the terms and covenants of this lease and agreement shall bind the parties, their respective successors and assigns; it being intended that the benefits of all covenants shall accrue to successors and assigns, as well as to the original parties, and that performance shall be by successors and assigns as well as by original parties.
“18. That Railways Company covenants and agrees from time to time to make any further deed or indenture to carry out these presents that Transit Company may reasonably demand.”
Plaintiff also showed that on January 23, 1904, the day on which plaintiff was injured, the following constituted the board of directors of the Transit Company, to-wit: Murray Carleton, Corwin H. Spencer, Henry S. Priest, James Campbell, Robert McCullough, George L. Edwards, Finis E. Marshall, Eugene Delano, Alonson D. Brown and Louis A. Celia, Murray Carleton being president and James Adkins secretary; and that on the same date the board of directors of the United Railways Company consisted of Murray Carleton, Corwin H. Spencer, Henry S. Priest, James Campbell, Robert McCullough, George L. Edwards, Finis E. Marshall, Eugene Delano, Alonson D. Brown and Edward G. Conrads, Murray Carleton being president, Corwin H. Spencer, vice-president and James A. Adkins, secretary.
It was admitted that since the beginning of the suit, the United Railways Company has taken the leased property the Transit Company was operating under the lease' and has operated it since taking it from said company.
Defendant offered in evidence a number of ordinances of the city of St. Louis, authorizing the construction of a number of street railways in the streets of said city, including the Eighteenth street line, and ordinance No. 19738; in the first paragraph of the first section of *618which ordinance, a number of street railways, including the Eighteenth street line, are named. Section 3 of the ordinance authorized corporations owning the roads named in paragraph 1, of section 1, “to sell, convey or lease, if found desirable, their property, rights, privileges and franchises, ... to any of the said companies named in this section, or to the St. Louis Transit Company, its successors and assigns.” It was admitted that the United Railways Company acquired by purchase all the railroads mentioned in the first paragraph of section 1. It was also admitted that two-thirds of the stockholders of the Transit Company and of the United Railways Company duly passed resolutions consenting to and authorizing the aforesaid contract of lease, and that the lease was properly executed.
Under the instructions of the court, the jury found for plaintiff and awarded her substantial damages. The United Railways Company filed its separate motion for a new trial and in arrest of judgment. The court sustained its motion for new trial on the sixth, fourteenth and fifteenth grounds assigned in said motion. They are as follows:
“6. The court erred in allowing the case to go to the jury as to this defendant.
“14. The court erred in admitting, over the objection of this defendant, the lease offered in evidence by plaintiff.
“15. The court erred in refusing to give the peremptory instructions in the nature of demurrers, offered by this defendant at the close of plaintiff’s evidence and at the close of all the evidence.”
From the order granting a new trial, plaintiff duly appealed to this court.
By the eighth clause of section 1187, Revised Statutes 1899, street railroad companies of this State are expressly authorized to lease their roads, therefore, the question of power in the United Railways Company (dis*619cussed iu the briefs) to execute the lease is eliminated by the statute. The statute conferring the power to lease is silent in regard to the liability of the lessor company for the torts of the lessee company. It neither declares the lessor liable for the torts of its lessee nor exempts it from liability for the negligence of the lessee in the operation of the leased roads; and the many cases cited in the briefs, decided upon express statutes, holding the' lessor company liable for the torts of the lessee company, are not in point.
The facts in judgment raised but two questions for decision: the first is, whether or not the contract, denominated a lease, is a lease, in fact, or a mere operating contract under which the Transit Company was operating the United Railways Company’s lines of railroad as the agent of the latter company; second, if the contract is found to be a lease, is the defendant liable for the negligence of the lessee in the operation of cars over the leased lines of railroad, in the absence of a statute declaring it shall be so liable. An analysis of the contract of lease shows that by the granting clause the United Railways Company granted, demised and leased to the Transit Company, for a term of forty years, all the railways the lessor then owned, in the city of St. Louis and the county of St. Louis, all that it might thereafter own or construct or operate and all its right, title and interest in all its property, real, personal or mixed, with all its franchises of every sort, reserving, however, its right to continue to be a corporation. All the powers and rights, in regard to collecting tolls, etc., as were possessed by the lessor, were also granted to the Transit Company, subjected, however, to the same legal restrictions as were imposed on the lessor, the 'Transit Company agreeing to indemnify, save and keep harmless, during the continuance of the lease, the United Railways Company from all costs, charges and expenses arising from the management and operation of said railroads *620and all matters incident thereto. As nearly as could "be, the contract shod the Transit Company with the shoes of the United Railways Company, the Transit Company assuming all the duties and liabilities of the United Railways Company. By paragraphs one to six inclusive, the Transit Company assumed the payment of all the obligations of the United Railways Company, including all taxes to be assesed against all its property, water rates, etc., and agreed to pay, in addition, as rental, five dollars per share on all the preferred stock of the United Railways Company and one thousand dollars per annum for the purpose of defraying the expenses of maintaining the corporate existence of the United Railways Company. The seventh paragraph requires the lessee to keep the leased property insured against loss by fire and to surrender the property to the lessor in good order at the expiration of the lease. The eighth paragraph requires the lessee to apply surplus earnings, over and above six per cent per annum on twenty million dollars of its capital stock, to the betterment, improvement and extention of the leased railroads or to the redemption of bonds named in the clause. The ninth paragraph provides that the lessor shall turn over all moneys of every character in its possession at the date of the execution of the lease, all that it might thereafter receive during the life of the lease from the sale of any of its property, and obligates the lessee to pay certain liabilities out of such moneys, including accrued interest on the mortgage indebtedness and the improvement of the property. The tenth paragraph provides that the contract shall take immediate effect and states that the United Railways Company is “turning over all assets of every character to Transit Company,” and that the latter is “assuming all liabilities of every character of United Railways.” The eleventh paragraph provides that the United Railways Company will maintain its corporate existence and exercise its charter rights for the purpose of enabling the *621Transit- Company to enjoy and avail itself of every right, etc., in respect to the use, management, etc., of the leased property, the Transit Company agreeing to save the United Railways Company harmless against all expense and loss. The twelfth paragraph provides that whenever the Transit Company should fail for sixty days to pay the rent or meet the obligations it assumed, the United Railways Company should have the option to treat the lease as forfeited and take possession of the property, in which event the interest of the Transit Company in and to the property should cease. By the thirteenth paragraph, the United Railways Company agreed to turn over all its cars, machinery, tools and other personal property to the Transit Company, the property turned over to be appraised, and the Transit Company agreed to return it in as good condition as when received, or its equivalent, or to pay the appraised value at the termination of the lease. The fourteenth paragraph is not important to a determination of the question in hand. The fifteenth paragraph required the Transit Company to keep correct books of account of all receipts and disbursements, the books to be open at all times for the inspection of the president of the United Railways Company. The seventeenth and eighteenth paragraphs throw no light on the question before us.
In Edwards v. Noel, 88 Mo. App. 1. c. 440, this court approvingly quoted the following definition of a lease: “A lease is a contract for the possession and profits of land and tenements, either for life or a certain term of years, or during the pleasure of thé parties.” [Bouvier’s Law Dictionary.] Substantially the same definition of a lease is given in Thomas v. Railroad, 101 U. S. 71, in Heywood v. Fulmer, 18 L. R. A. 491, and in many other cases that might be cited.
In Moore v. Miller, 8 Pa. St. 1. c. 283, it is said: “An agreement that Miller should enter and dig for ore, build houses, etc., he to pay, as a compensation to the *622owner of the land, fifty cents a ton for every ton of ore, was, in substance and fact, a lease.”
In Walls v. Preston, 25 Calif. 59, it was ruled that an agreement in writing by which one party leased to another, for a specific term, certain land, the second party agreeing to cultivate and plant the land at his own expense and deliver one-sixth of the crops to the first party, was a lease and not a contract for the services of the second party.
In 18 Am. and Eng. Ency. of Law (2 Ed.), sec. 1, p. 597, a lease is defined to be “A contract for the possession and profits of lands and tenements on the one side, and the recompense of rent or property on the other; or, in other words, a conveyance to a person for life, years, or at will, in consideration of a return of rent or other recompense.”
The contract comes within the foregoing definition of a lease and, in terms, conveys what the statute, in effect, declares should constitute a lease of a street railroad, to-Avit, “the right to hold, use and operate the road.” It is contended by the appellant, however, that as the contract shows the United Railways Company agreed to turn over to the Transit Company all its assents, including money on hand and any it might thereafter acquire from any source whatever, with all income derived from any bonds or stocks then owned by it or which it might thereafter acquire, retaining nothing -whatever but the bare right to continue to be a corporation, the Transit Company assuming all liabilities of every character of the United Railways Company and agreeing to indemnify and save harmless the United Railways Company against all expense, loss, damage or liability for the exercise of its corporate powers and franchises and the performance of corporate acts when exercised or done at the request of the Transit Company, and that for betterments and improvements to be made by the Transit Company it should be reimbursed by the bonds of the United Rail*623ways Company, the Transit Company became the partner or agent of the United Railways Company. The bonds and stocks the United Railways Company agreed to turn over to the Transit Company are not specifically named, but as the lease shows that the lines of road it acquired had outstanding bonds and stocks which the United Railways Company was expressly authorized to acquire by the seventh clause of section 1187, supra, the reasonable inference is that in making the purchase it acquired stocks and bonds of some or all of these lines of railroad and that it was these stocks and bonds thus acquired that it agreed to turn over to the Transit Company. This inference is strengthened by the further fact that the Transit Company agreed to pay the interest on the bonds of these lines as part payment of the rent reserve, and that these identical lines were, leased to it. It is contrary to legislative policy for a corporation to become a member of a partnership (Aurora State Bank v. Oliver, 62 Mo. App. 1. c. 393 and cases cited), and a conclusion should not be drawn that the purpose of the parties to the contract was to form a co-partnership unless the contrary clearly appears.
In Missouri Bottlers’ Ass’n v. Fennerty, 81 Mo. App. 1. c. 534, it is said: “The fundamental idea of a partnership inter sese is that it is formed for the purpose of trade or gain in business, and that each has the right to participate in the profits.”
The contract of lease nowhere shows that the United Railways Company was to participate in the profits to accrue from the operation of the leased property and in no sense of the term did the contract create the relation of partners between the two companies.
As agent has been judicially defined to be “one who undertakes to transact some business, or manage some affair for another, by authority and on account of the latter and to render an account of it.” [Wynegar v. State, 157 Ind, 1. c. 579; Metzger v. Huntington, 37 N. *624E. 1084.] Paragraphs thirteen and fifteen of the contract are relied on to bring the Transit Company within the definition of an agent. Paragraph thirteen required the Transit Company to turn bach all cars, machinery, tools, etc., it received in as good condition as when received or their equivalent, or to pay their appraised value. It is immaterial whether this arrangement is called a lease or a hiring of the equipment and other personal property, the effect is the same. It shows that the Transit Company did not take it to use as the agent of the United Railways Company but to use for its own benefit. The fifteenth paragraph required the Transit Company to keep correct book accounts of all receipts and disbursements to be open at all times for the inspection of the president of the United Railways Company. This paragraph should not be construed separate and apart from the other provisions of the contract, whereby it is shown that the Transit Company agreed to expend the surplus of its net earnings in betterments and improvements or in the purchase of bonds of the acquired lines of railroad. When viewed in connection with this stipulation in the contract it has no meaning other than that the lessor should have the privilege of ascertaining from time to time whether the lessee was expending its surplus earnings in accordance with the provisions of the contract.
Both corporations had a board of ten directors at the time of the trial. Nine members of the board of directors of the United Railways were also members of the board of directors of the Transit Company, and both companies were served by the same president and the same secretary, but whether or not this or a similar condition existed at the time the lease w7as executed or at the time of the accident is not shown by the evidence, therefore, if any unfavorable inference can be drawn from the fact that both corporations have at the present time a common board of directors and are served by the *625same president and the same secretary, the inference cannot be made to relate back to affect the contract of lease, which may have been executed when no such condition existed. Beside, this issue is not in the case, for it is not alleged in the answer, that the two corporations were identical in government and interest, or that the lease was made in bad faith. We do not think there is anything in the contract or the evidence to show that the Transit Company was appointed the mere agent of the United Railways Company. The contract is loaded with many details not usually found in a lease, but the nature of the property leased and the purpose for which it was to be operated, and the many subordinate and varied interests that the Transit Company agreed to protect, made it necessary to either incorporate these details in the contract of lease or to provide for them by a contemporaneous supplemental contract. The fact that they were put in the lease does not destroy the character of that instrument.
2. Having legislative and municipal consent to lease its lines of railroad, is the respondent, nevertheless, liable for damages caused by the negligent operation of cars on the leased lines by its lessee? The authorities on this question are not harmonious.
In Harmon v. Railroad, 28 S. C. 401, the defendant company, Tinder a right given in its charter to “let or farm out,” its road to another company, leased its road. The court held that the lease did not exempt the lessor from responsibility, in the absence of any provision granting such exemption, and that it was liable for cattle negligently killed by a train of cars operated by the lessee. Beach, on the authority of this case, says: “The lessor continues tobe liable for all acts done by the lessee in operating the road, whether the cause of action be ex delicto or ex contractu. .' . ' . And this is so although the charter of the former authorizes it to lease *626its road. . . . The original obligation can only be discharged by a legislative enactment, consenting to and authorizing the lease, with an exemption granted to the lessor company.” [1 Beach on Private Corporations, sec. 366.] Harmon v. Railroad, supra, followed National Bank v. Railway, 25 S. C. 225, and was in turn followed by Parr v. Railroad, 43 S. C. 197.
In Chicago & Grand Trunk Railway Co. v. Hart, 209 Ill. 414, the rule announced in the South Carolina cases was not only approved but was made to extend to an employee of the lessee company who had been injured by its negligence. The argument in support of the rule is thus stated by the learned judge writing the opinion:
“There is a conflict in adjudicated cases on the question whether a lessor railroad company is liable to a servant of the lessee company for injuries occasioned by the negligence of the lessee company in the operation of the leased road. Mr. Elliott, in his work on Railroads (vol. 2, p. 610), says that he inclines to the opinion that the lessor company is not so liable where the injuries to the servant of the lessee company are caused solely by the negligence of the lessee company in operating the road, but this author says that the weight of authority is against the view that he is inclined to adopt. We think this court is committed to the view held by the current of authorities on the question, and, moreover, that, in sound reason and as the better public policy, the doctrine should be maintained that the lessor company shall be required to answer for the consequences of the negligence of the lessee company in the operation of the road, not only to the public, but also to servants of the lessee company who have been injured by actionable negligence of the lessee company.
“The charter of the lessor company empowered it to construct this line of railroad and operate trains thereon. It became its duty to exercise those chartered powers, otherwise they would become lost by non-user. The *627statute authorized it to discharge that duty through a lessee, and it adopted that means of performing the duty which the State had created it to perform. The statute which authorized it to operate its road by means of a lessee did not, however, purport to relieve it of the obligation to serve the public by operating the road, nor of any of the consequences or liabilities which would attach to it if it operated the road itself. [8 Starr & Cor. Stat. 1896, p. 3247.] Statutory permission to lease its road does not relieve a railroad company from the obligations cast upon it by its charter unless such statute expressly exempts the lessor company therefrom. [Balsley v. St. Louis, Alton and Terre Haute Railroad Co., 119 Ill. 68.] While the duty which rests upon the lessor companies to operate their road is an obligation which they owe to the public, the permission given by the Legislature, as the representative of the public, to perform that duty through lessees, has no effect to absolve such companies from the duty of seeing that the lessee company provides and maintains safe engines and cars, and that the employees of the lessee companies to whom is entrusted the operation of their roads are competent and that they perform the duties devolving upon them with ordinary care and skill, for upon the character and condition of safety of such engines and cars and on the competency and care of such employees depend the lives and' property of the general public.”
In Chicago & Western Indiana Railroad Company v. Doan, 195 Ill. 168, it is said: “The negligence of a lessee of the tracks of a railroad company is imputable to the lessor company.” The same doctrine is stated in Chicago & Erie Railroad Company v. Meech, 163 Ill. 305.
In Aycock v. Railroad, 89 N. C. 321, Smith, C. J., for the court, said: “The cases cited in the well-prepared brief of the plaintiff’s counsel fully sustain the proposition, that the defendant company, leasing the use of its *628road or permitting the use of it by another company, remains liable for the consequences of the mismanagement of the train in charge of the servants of the latter, and the injury thence resulting, to the same extent as if such mismanagement was the act or neglect of its own servants operating its own train.” This case has been followed and approved in Logan v. Railroad, 116 N. C. 940; Harden v. Railroad, 129 N. C. 354; Smith v. Railroad, 130 N. C. 344, and in Brown v. Railway, 131 N. C. 455.
In Singleton v. Railroad, 70 Ga. 464, the court held:
“The original obligation of the railroad company to the public could not be discharged except by legislative enactment, consenting to and authorizing the lease; with an exemption granted to the lessor company from liability. Legislative consent to the lease is not alone sufficient. There must be a release from the obligations of the company to the public,” and further held that the lessor company was liable for injuries to a passenger, caused by the negligence of the lessee company in putting him off the train. At page 467, the court said:
“It is now a Well-settled principle that a corporation, being the creature of the law, has only the powers conferred upon it by its charter, and that all others not necessarily implied therefrom are withheld. Its grants, whether of power or exemption, are always to be strictly construed, and its obligations are to be strictly performed, whether they may be due to the State or to individuals. It seems also to be well settled that a railroad corporation (and it is with such that we are dealing in this case) cannot, without special authority of statute, alienate its franchise or property acquired under the right of eminent domain, or essential to the performance of its duty to the public, whether by sale, mortgage or lease. [101 U. S. 71; 17 How. 30; 21 How. 441; 4 Biss. 35; 10 Allen 448.]” This case was followed in Hawkins v. Railway, 119 Ga. 159.
*629In Braslin v. Railroad, 145 Mass. 64, the defendant had leased its road to another company Avhich lease was subsequently ratified by the Legislature. The plaintiff, while a passenger on a car operated by the lessee company, was thrown from the car and injured. The court held the defendant lessor company' liable. In the discussion, Allen, J., writing the opinion (at page 68), said:
“The provisions of the lease, including those which are incorporated by reference, define the duties and obligations of the contracting parties as between themselves, and appear to be sufficient effectually to lund the lessee to indemnify the lessor against loss. But it is nowhere stated that the lessor should be exonerated from responsibility, nor was it possible for the parties to make a contract which should have that effect. The sanction of the Legislature was given to the contract as made by the parties, but added nothing by way of exemption from the primary responsibility of the lessor. The lease did not purport to transfer the lessor’s franchise, or the whole of its property. The lessor was not going out of business entirely, but only leased a portion of its road, with provisions for restoration of the leased property at the end of the term, and for re-entry. It was under a positive duty and obligation to’the public, and the consent of the Legislature to the making of the lease did not imply a discharge from the duty and obligation. Indeed, there is a certain implication that the parties did not contemplate any such discharge, arising from the stipulation for indemnity Muring said term,’ that is, during the whole term of the lease. '
“Where a corporation seeks to escape from the burdens imposed upon it by the Legislature, clear evidence of a legislative assent to such exoneration should be found.”
In Chollette v. Railroad, 4 L. R. A. (Neb.) .135, the court held:
*630“The original obligation of a railroad, company to the public cannot be discharged by a transfer of its franchises to another company, except by legislative enactment consenting to and authorizing such transfer, with an exemption granted to such company relieving it from liability. Legislative consent to the transfer is not alone sufficient; there must be a release from the obligations of the company to the public.”
In McCabe’s Admx. v. Railroad, 112 Ky. 861, it was held that a provision in the charter of a railroad corporation empowering the corporation to “make contracts with individuals, corporations and other railroad companies for the building, completion and operating of said road or any part thereof,” authorized the corporation to lease its road, but did not relieve it from liability for the negligence of the lessee in the operation of a train whereby a person on the track was struck and killed.
In Heron v. Railway, 68 Minn. 542, it was ruled that exemption from liability on the part of the lessor company for damages for acts of the lessee company is not necessarily implied from a lease made with legislate e authority, giving the lessee company exclusive control and possession of the road.
McCoy v. Railway, 36 Mo. App. 445, cited by appellant, where the lessor company was held liable for damages caused by fire escaping from the engine of the lessee company, is not in point, for the reason the statute authorizing the lease expressly reserved that the lessor should, not escape any of the responsibility it owed to the public. Neither is the case of Anderson v. Railroad, 161. Mo. 411, 61 S. W. 874, cited by appellant, in point, nor any other Missouri case cited by counsel for either side.
As stated in 23 Am. and Eng. Ency. of Law (2 Ed.), p. 784, “there is a sharp conflict of authority as to whether the lessor of a railroad is liable for injuries to personal property caused by the wrongful or negligent *631acts or omissions of the lessee in the operation of the road, as distinguished from the' non-performance of a duty which the lessor’s charter or the general law imposes primarily on the lessor.”
Judge Elliott, in his work on Railroads, after noticing the conflict of authority, says: “Our opinion is that where the lease is executed under the provisions of a statute, in accordance with its requirements, is made to a company having authority to accept it, and is made in good faith and not for the purpose of transferring duties or obligations to an irresponsible party, the lessor company is not liable for injuries caused by the negligence of the lessee and not attributable to a breach of any public duty of the company that executed the lease.” [2 Elliott on Railroads, sec. 469.]
Nellis on Street R. R. Accident Law, p. 488, without referring to the conflict of authority or commenting on any of the cases, says: “Where the railroad company is authorized by law to lease its road to another railroad company, the company leasing its road is not liable for the misconduct in the management, if the persons in charge at the time are not in fact its servants or agents, but are the servants or agents of the lessee.”
Hutchinson on Carriers (2 Ed.), sec. 515b, says: “'An authorized lease, however, not otherwise providing, will absolve the lessor from the torts of the lessee resulting fr&m the negligent operation and handling of its trains and the general management of the leased road over which the lessor has no control,” citing Nugent v. Railroad, 80 Me. 62, and Mahoney v. Railroad, 63 Me. 68, as authority for this rule. But no reference is made in the note by the. author to cases holding to the contrary.
On the authority of the M'aine and New York cases, Pierce says: “The lease of a railroad under due authority of law effects a transfer of rights and liabilities in its management, so that the corporation owning the rail*632road is discharged from responsibility for the lessee’s torts.” [Pierce on Railroads, sec. 283.] Pattison, on the authority of the Maine and New York cases states the same doctrine. [Pattison on Railway Accident Law, sec. 131.]
Wood on Railroads, vol. 3, p. 2056, says: “Where the lease is made under due authority, so that there can be no objection to its validity, some authorities hold that the lessor is relieved from liability for injuries resulting from the negligent operation of the road. But this admits of serious question unless the lease contains specific provision for the lessor’s exemption from liability.” Tn a footnote the author cites some of the conflicting cases but refrains from an expression of individual opinion in regard to the rule.
In Arrowsmith v. Railroad, 57 Fed. 165, most of the authorities are reviewed by Judge Lukton and the conclusion reached is, that where a railroad company leases its line by authority of law, and there is no exemption from future liability, either by express terms of the statute or the terms of the lease, nevertheless the lessor is not liable for injuries to a passenger traveling under a contract with the lessee, when such injuries are caused wholly by the lessee’s negligence in operating the road. This case was followed in Hayes v. Northern Pacific R. R. Co., 74 Fed. Rep. 279.
In Ditchett v. Railroad, 67 N. Y. 425, it was held that a recovery could not be had by a plaintiff, suing as administrator for injuries caused his intestate by falling into a cut made by the defendant for the purpose of its railway, said cut having been made by the lessor and inclosed by a substantial fence before the making of the lease, which fence was permitted to become out of repair by the lessee corporation: The court applied to the case the ordinary rule, that a lessor of premises who parts with them while they are in proper condition is not bound to see that they are thereafter properly cared for *633by his lessee and is not responsible for their subsequent-condition. The same ruling was applied by the same court in Miller v. Railroad, 125 N. Y. 118.
In Caruthers v. Railroad, 54 Pac. (Kan.) 673, it was held: “In the case of a. lease made by one railroad company to another under the statute authorizing leases between railroad companies, the lessor company is not liable to third persons for injuries resulting from the negligent operation of the leased line by the lessee company, where the lease is general in its terms, and confers upon the lessee' company ‘the exclusive right to run and operate its trains of cars over and upon the track of the lessor company,’ without reserving to the latter any right of control over the operation of the road by the former.” •
In Pinkerton v. Pennylvania Traction Co., 44 Atl. (Pa.) 284, it was ruled that where a lease of a street railway is duly authorized by law, the lessee only is liable for negligence in its operation.
In Buckner v. Railroad, 18 South. (Miss.) 449, and in Virginia M. Ry. Co. v. Washington, 10 S. E. (Va.) 927, it was held that the lessor company was not liable for injuries caused by the negligence of the lessee company to its employees in the operation of the road.
The authority of the case of Nelson v. Railroad, 26 Vt. 717, holding the lessor liable for the negligence of the. lessee in the operation of a train over the leased road, is somewhat shaken by Judge Redeield, in a note to paragraph 3 (vol. 1, p. 636) in his work on Railways. The paragraph reads as follows:
“But even where such contracts have been made, by permission of the Legislature, it has been held, in this country, that the company leasing itself does not thereby escape all responsibility to the public; but that the public generally may still look to the original company, as to all its obligations and duties,, which grow out of its relations to the public, and are creáted by charter and *634the general laws of the State, and. are independent of contract or privity between the party injured and the railway.” In a footnote he refers to the Nelson case and says: “But it is, perhaps, worthy of consideration, in regard to this case, that the effect of the legislative consent to the lease is not made a point in this case.”
The courts, of all the States, except New York, so far as we have been able to see, have held that a railroad company is not absolved from its public or statutory obligations by leasing its road to another company, though authorized by the Legislature to execute the lease, unless the statute authorizing it to lease grants the exemption. A street railroad corporation is a quasi public corporation, enjoying a monopoly and is created for the primary and almost exclusive purpose of carrying passengers, and the acceptance of its charter implies an assumption on its part of an obligation in favor of the public to operate its road until discharged from the obligation by the State, hence its duty to carry passengers is a public one. [State v. Railroad, 29 Conn. 538; 1 Morawetz on Private Corporations, sec. 116.] A distinction has been drawn between the common-law obligation of a railroad company to carry freight and passengers and its statutory obligation to fence its road, build cattle-guards at public highway crossings, prevent sparks from escaping from its engines and setting out fire on the land of adjoining proprietors, and- other like statutory requirements. The statutory duties are denominated public ones, from a performance of which a lessor company is not absolved unless the exemption is granted by the Legislature, while the obligation to carry passengers is generally called a private duty arising out of contract. It seems to me this distinction is more subtle than sound. The duty to fence, etc., is imposed by statute. The obligation to carry passengers is grounded in the common law. Both duties are legal and the company assumes to discharge both by the acceptance of its charter, and I cannot see *635on what rational ground one is classed as a public and the other as a private duty. They are of equal dignity, of equal force and the performance of either may be enforced by the State in a proceeding by mandamus (State v. Railroad, supra) and it is only true in a relative sense that a passenger is received and carried by a railroad company by virtue of a private contract made by him with the company. By incorporating under the general laws of the State, the defendant agreed to carry passengers for a fare to be fixed by the Municipal Assembly of the city of St. Louis (sec. 1187, supra). It also agreed to submit to and observe such reasonable municipal regulations in regard to stopping its cars for receiving and discharging passengers as the Municipal Assembly of the city might prescribe by ordinance. The fare has been fixed by ordinance, and police regulations, in regard to the operation of its cars, and the reception and discharge of passengers, have been enacted; so that the State and the city on the one side, for the benefit of the public, have fixed the fare to be paid, designa ted the places on the streets where passengers shall be received and discharged, and the company on the other, by incorporating under the general laws, agreed to the terms prescribed by the State and city, and all that is required of the individual to become a passenger is to accept the terms of the contract exacted of the company by the State and city for his benefit, and when he presents himself for carriage at the proper time and place and tenders the fare fixed, the company is bound to receive and carry him; to refuse to do so'would be a repudiation of the very purpose of its charter and a violation of the highest of its obligations to the public. The following clause in the lease, to-wit: “And Transit Company will indemnify, save and keep harmless, during the continuance of this lease, United Railways from all costs, charges and expenses arising from the management and operation of said railways, and all matters incident *636thereto,” indicates that defendant, United Railways Company recognized that one of its public duties was to carry passengers, and took from the Transit Company an obligation to indemnify and save it harmless for all costs and damages that might accrue from the negligent performance of the duty by its lessee. It exacted of the Transit Company an exemption from its obligation to transport passengers in safety — an exemption the Legislature withheld when granting the power to lease. Rut it seems to me that whether the obligation of a street railroad company to carry passengers is classed as an obligation the company peculiarly owes to the public, aW for that reason cannot be shifted to a lessee without legislative grant, or as a mere private obligation to the individual passenger, arising out of contract, expressed or implied, the obligation is so far-reaching and of 'such paramount importance to urban populations that exemption from the obligation cannot be had in any other way than by express legislative grant. The defendant has not received this grant, and I think it would best conserve the legislative policy of the State to follow the rule as declared by the cases cited from the States of Massachusetts, Vermont, Illinois, Kentucky, Georgia, North and South Carolina, and hold the defendant liable for injuries caused by the negligent operation, of its cars by the Transit Company, its lessee.
The foregoing statement and opinion were written and in the hands of the other members of the court for months before their opinions were prepared, and in vieAV of the fact that they have discussed questions not noticed in my opinions, I deem it proper to add my individual views touching these questions, and proceed to do so.
The argument of my learned associates, to the effect that the Legislature, by using the term “lease,” in sections 1187, Revised Statutes 1899, without restricting or qualifying its ordinary meaning, intended the lease *637therein authorized should, as to the public and as to third persons, in respect to the management and use of the leased property, stand on the same footing and be governed by the same rules of law as a lease between private persons, it seems to me is strained and wholly unsound. A private person acquires property for his sole use and when acquired it is wholly his own and he may do as he will with it, provided he does no legal wrong in his use or disposition of it. This is not so in respect to a street railway company. It procures a franchise to lay its tracks in the public streets of a city, with the distinct understanding that it will provide the necessary rolling stock and equipment to carry the traveling public. Property thus acquired is not for the sole use of the company, but is also for the use of the public, and the public has an interest in it, and hence is directly interested in its management and operation (Muntz v. Railway, 64 L. R. A. 222) and is, in no narrower sense, a party in interest to every contract affecting the use and management of the property; and the rules of law defining the several duties and obligations of the lessor and lessee of private property are wholly inadequate to protect the interests of the public in street railway property operated under a lease, and it seems to me, on grounds of public policy, that the lessor company should be held to a strict performance of the duties imposed upon it by law, chief among Which, is to carry passengers safely. I also find in both opinions an argument, or rather an inference, which I think is unsound and not warranted by any language found in the statute. It is this, that the section (1187) evinces a legislative intent that the public policy of the statute shall be to exempt the lessor company from liability for injuries to passengers, caused by the negligence of the lessee.
Sherwood, J.,in Kitchen v. Greenabaum, 61 Mo. 1. c. 115, said: “Courts have never yet ventured to de*638fine in specific terms the meaning of the phrase, ‘public policy,’ ”
In Enders v. Enders, 164 Pa. St. 1. c. 271, the court said: “Public policy, in the administration of the law by the courts, is essentially different from what may be public policy in the view of the Legislature. With the Legislature, it may be, and often is, nothing more than expediency.”
In People v. Hawkins, 51 N. E. 1. c. 260, it is said by the New York Court of Appeals: “The courts have often found it necessary to define its (public policy) judicial meaning, and have held that a State can have no public policy except what is to be found in its Constitution and laws.”
In Swann v. Swann, 21 Fed. 1. c. 301, it is said: “The only authentic and admissible evidence of the public policy of a State on any given subject are its Constitution, laws, and judicial decisions.” A like ruling was made in Hartford Fire Ins. Co. v. Railway, 70 Fed. 201.
Prior to 1899, when section 1187 was passed, on grounds of public policy, street railroad companies were denied the power to lease their roads. By the act of 1899, the Legislature abrogated this public policy and declared a different policy by granting them the potver to lease. To this extent the statute is declaratory of the public policy of the State respecting the right of street railroad companies to lease their property. The statute is absolutely silent as to whether or not a lease shall or shall hot exempt the lessor company from liability for failure to perform the statutory duties required of all street railroad companies, or from liabilty for injuries to a passenger caused by the negligence of the lessee; and I am unable to see upon, what rational ground it can be said, the Legislature by granting the power to lease, also by its silence, declared a public policy that should follow the exercise of the power, when the policv is in nowise connected with or essential to a full and complete ex*639ercise of the power granted. In case of an absolute sale of the property and franchise of a street railway conn pany, no question of liability of the selling company can arise. But a lease is not a sale. In the lease contract, the United Railways Company expressly reserved its right to be a corporation, maintained ownership in all its property, personal and real, held on to its charter, to its franchises and privileges, and the question is, can it do this and at the same time shift all liability for the non or malperformance of the duties it contracted to perform as a consideration for the grant of its franchise by the State, by merely delegating to another company, under the form of a lease, authority to possess, manage, and operate its road. If the Legislature, with the power of a lease, had also granted the exemption, it would have declared what should be the future public policy of the State respecting the question under consideration. As it did not do this, the question is one to be answered by the courts, not on anything that is found in the statute, for that is absolutely silent, but by the general tenor of legislation respecting these public-service corporations, and the decisions of the Supreme Court, from both of which it is manifest that the public policy of the State is, and always has been, to hold railroad companies, both steam and street, to a strict accountability for the manner in which they manage and operate their roads and to exact from them the exercise of the very highest degree of care for the safety of their passengers. If this rule of public policy is adhered to, it seems to me that nothing short of a legislative grant of exemption will be effectual to shift liability from the lessor to the lessee company for an injury to a passenger caused by the-negligence of the lessee. Entertaining these views, I am unable to concur in the reasoning or result reached by my learned associates; and from the discussion in the case of Markey v. Railroad, 185 Mo. 348, 84 S. W. 61, I think the opinions of the majority are opposed to the *640views of the Supreme Court in the Markey case, and therefore ask that the case be certified to the Supreme Court for final decision.