WELLS
v.
OBEGON B'Y... N. 00.
561
and others v. SAME
By. & N. Co. & C. By. Co. March 19,1SSS.)
OREGON
(Oireuit Oowrt, D. Oregon. 1. ExCEPTION8 FOR IMPERTINENCE.
Exceptions to a bill for impertInence will not oe allowed, unless it Is clear matthat 'the matter excepted to cannot be material to the plaintiffs' case ;' ters which may be 80 m.aterial are not necessarily impertinent because they are such as the court may judicially take notice of.; nor is it necessarily impertinent in a bill for an injunction to refel!'to rehent adjudications of the; 'question .in'V6lved, in similar cases ill other courts.. , ,:' :, ',
aM
2.
ACT OF INCORPORATION-CHA.NGE OF CORPORATE NAME.
By an act of the,legislature of Colorado of, p:ebfuary 5, 1866,\cel;tainpers:>ns .were incorporated as the" Holladay Overland' Mail & Ex.presilCompany," with' the privilege and power of chariging its ;'name by an "order" of' its directors" approved" by the'stockholders; and the bill alleges thaUhe stdak. holders;,tn l?ursu.1nce of said IWt, ,name ,of tile corporation to "Wells" Fargp & Co.," which change was afterwards approved by the legislature by the act of .January26, 1872. Held, (1) that until the ccbitrary'appears; it should- be pre:romed that the tinal actianof the stockholders was 'had,fa pursuance of the order of the directors;, (2) tbat essentilll act in the proceed,. ing was the vote of the .stockholders. to which the order of, the board was therefore thatpflrtion t1le act providingfol' stich or- only preliminary,' der ought to be considered merely directory; and (8)8emble, that the act of 1872, approving the change, is not in cOllflict with section 1889 of the Revised 'Statutes, forbiddipg the legislat1,ue of Oolorado from granting .. private charters or especial privileges."
*.0 of
8.
EXPRESS FACILITIES.
This term is probably a sufficIent rlescription of the accommodation or service IS ex.pected and Illay be rewhich a railway or other transportation quired to furnish a person or corporation engaged in the express business. 4. EXPRESS BUSINESS.
This business bas come to be a recognized branch of the carrying trade, of which the court will take notice; and a railway or other corporation created serve the public asa common carrier, is bound to furnish the by the state usual and proper facilities to persons engarsed in such bUsiness, who are so far the agents, bailees, and representatives of the public. 5. DECISIONS OF THE:UNITED STATES CmCUIT CoURTS.
The circuit courts of the UnftedStates arc co.ordinate, trihunals, constituting a single system, and the decisions of one of them, deliberately made, ought usually to be regarded as decisive of the question involved, until otherwise determined'by the supreme court. 6. COMPENSATION OF A HAlLWAY CoRPORATION.
Section 86 of, the incorporation act, (Or. Laws, 582,) whIch declares a railway corporation formed thereunder to be a common carrier, and empowers it "to collect and receive such tolls or freights for transportation of persons or property thereon as it may prescribe," authorizes such cOl'Doration to take reao
v.15,no.8-36
562 sonable toll, not inconsistent with its character and obligation as a common carrier, and no mpre.; and, so far, it .constitutes a contract between the corporation and the state,:fue obligation of which the latter cannot impair nor any court disregard. 7. HEASONABJ.E COMPEwSATIONl
What is reasonable compensat.ion under said section 36, when the parties cannot agree thereabout, is a question to be determined by the court; but in allowing a provisional injunction requiring a railway corporation to furnish an .and upon express company with the facilities theretofore enjoyed by it, its road, will assume for such past facilities is reasonable, and require them to be furnished under the injunction at the same
In Equity. ' Suits for injunction. Clarence A. Seward, M. W.Feohheimer, and J. R. Lewis, for plaintiffs. Joseph N.Dolph and J. F.McNaught, for defendants. DEADY, J. These suits' were commenced on December it, 1882, and on the same day an order was made in each requiring the de· fendant therein to show cause whylt provisional injunctioIlsllould riot for in the bill; and also tqat in the, mean time the defendants -be so restrained·· On January 25-6 the motions for provisional inj unotions wete heard at the 'questions which can or may arise in being argued 1;Iy counsel with much and ability. with those, a similar suit was eommenced by the plarihtiff in' Washington territory against the Northern Pacific Railway Com:pany, 'and by an undElrstanding between court and counsel a motion for an injunction was heard in thatcltse at the same time with the Oregon cases-Mr. ChiefJustice GREENE of that 'te'lTitory, in whose the case is pending,being pl esent at the hearing. . , ,It appears from the bill in each, case that the plaintiff is a corporation organized under the laws of Colorado, and engaged in the express business on the Pacific coast and elsewhere to the eastward of the Rocky mountains, the country tra"ersed by the lines of the defendants' railways, steam-boats, and stea:t;ll-ships in Oregon, Washington, Idaho, California, and British Columbia; and has. been since February 5, 1866, when it StlChC01'poration and so succeeded to the express business cari'ied on by Henry Wells, Will. iam G. Fargo, and four others, .Q6tWeen New York a,nd tlan Francisco, and elsewhere'on thEfPacific cost, since March, 1852; 1'he defendants, the Otegon Railway & Nayigation Oompany and the Oregon & California Railway Company, arecorporatlons formed under the laws of Oregon, with tlwil' princil;al places of business in
Portland; and engaged in business ofa :cClmmon carrier of freight and passengers; and as sucpcorporation the former owns and operates certain lines qf railways, steam-boats, and steam-ships in Oregon, ,Washingtop, California, and :British Columbia, .and the latter owns and operates certain lines of railway in Oregon. It is alleged in the, bills,that heretofore the plaintiff has been furby the defendants, .the .necessary facilities for doing its express business over apdupon their said lines of for which'it ,has paid them a stipula.ted price, but that now the defendants refW:le to furnish such facilities any longer. and. have notifiedthe plaintiff that intend to do the express buainess oJ;l. their. line!!. of transportatioD themselves ;sndthat such refusal 'would work an irremedial injury to the plaintiff. " The defendanta exceptions to pills for impertinence, which were heard and submitted at ,the same with the IUotions for the They are numerous,and include a la;rge portion of the allegations contaiped in th.e bilJs,such as .(1) matters which the court can judica,lly know.; (2), the extent, value, and importanceo.f Jhe ex.press business in the>United S,tates, ancltheQ'itcumstances up been transacted;,(S) the .ullage and past of railway companies in relation to thesam.e; (4) the citation and quotati9Q. of. q.cts of congress ,concerning or recognizing the express business; and (5) the aVeI:IUents. conoerning prior Wjunctions allowed by the courts)usimill:\orcases. , from bill as impertinent un.tin /tUeglJ,tion will not less its impertinence clearly appears; for if ,itisertoneously struck Story,Eq. Pro § 267,. ' out the error is , Collsistentlywith this rule I do not think these exceptions ought tobe allow'ed. be to a full, and proper presentation oftha plaintiff's case to, allege the existence of facts within the judioial knowledge of the court, and, if. so, they are,pertinentther;eto. The fj'tct that they may be proved by r,eference to the judicial knowledge does not dispense with the avermeJilt of them.,Qr render such. averment impertinent. So, in regard to the allegations c()nc(:lrning the business in which the plaintiff is engaged and is seeking by this means to. protect, the facts concerning its Qrigin, growth, v:alue; importa.nce, and relation to the public and transportation such as the defendants, may all be material to a un:de\"standing of the if so, they maybe stated fullness plaintiffs' case, in the bill. An.d rule is more especiallyapplil\llb1e to cases like these, which, although not eXj\ctly pf jirst the ap-
:pliba£iofi 0{ established rulea and principles. to new ann important instances arising out of 'comparati;velyreeent but radical changes in the methods and"Circumstances attending the transit, receipt, transportation, and delivery of a very large amount of the valuable personal property in trust over the country. to have been recently allowed Concerning the injunctions in several of the United States circuit courts in similar cases, the matter is undoubtedly a proper one for the consideration of the court, as the adjudication of co-oidinate tribunals, and my impression is that it may as well be brought to the attention of the defendants and the knowledge of the court in this way, as similar adjudications, to Iwhich the· plaintiff is a party, commonly are,in suits for infringement of patents. Curt. Eq. Pree. 80; Curt. Law of Pat. " ; ..In answer; t()!iheapplica.tions for the injunctions the defendants 'filed theaftida.vits of: tbeir teilpective 'managers; but neither of these 'contradiot '01; qualify the 'facts herestated,except, in one partictt'lar. ,The manager .jf the Oregon & California Railway CompanyidElbies that the, phiintiff haS' been notified that it would no longer beallowed)'6'Xpress facilities'i)n its of railway, but, on the canti!8iry, iba;t, the plaintiff has ;alcontract wiith said defendant for Said' faeilitias 1, 1888, as far south as Rosebilt'g, but not over ,the constrrictedto the southern boundary of the state, and ithencorripietedtoRiddle1s 'station, some 26 miles south of Roseburg. .But it from the affidavit of the' presit\en,t of th:e plai1lltiff t'hathe was info,htiedby the president of' the Northern Company; a.nn both the defendant corporations, in November, 1882, ,that the notice to the 'plaintiff from the Oregon Company; to the effect that it would not' be 'a,ll!owed ,e,qjral3s'fllicilities 'on its lines of transportation after Decemher8t, 1882,' upon the 'steam-ships between Portland aiM San FraMisco, would' lead to same result in the cll,i:leof the Oregon &:Oa.lifdrnia Railway'(}dnipitny, and that his board' the, express 'Wsiness on the lines of the N6:rthei'n 'PacifieRail'wlty Oompail'Y and those of 'thedefehaahts'for thein' " : ·.f' ' . facts, then; I ,thinWW may be concluded -ants intend and willj'unless 'restrained thel'efrom,withdraw from'the plaintiff 'Q.nthEii:r lines of transportation all the express facilitieshei'eiofoteaffordijd it, for the small portions of slich lines which may not 'beincluded'in that purpose at present would be of no benefit to the l"iaintiffifexoluded from the remainder. '
BY.; &; N. 00.
Buti upon the case made the bills, counsel' for the object to the allowance of the injunctions, because (1) not appear that the plaintiff is a corporation or has capacitit6,:sue; (2) the statement as to the facilities heretofOre afforded the plaintiff,and. which will required for the trllJIsaotion 'of,its is insufficient; (3) the defendants cannot be required, under articles of incorporation and the laws of the the phiintiff the facilities demand6d, or to give 4t a prefetence Over othershipp'Bts in the transportation of freight; (4) if thepl!tintiff is entitledioa continuance of the facilities heretofore affordM \it it is not as to future extensions such lines; and (5) the pa'S no power to detetmine the Compensation; to be patd by the 'plaintiff to the 'deterldamJ'torexpresll' fa:bilititls. "); ;, . 'i It 'that the plaintiff was, 5, 1866, dhl:fincorpotat'ed,by an act of the legislathre 'of 'Colorado of that:date; 1\$ "The Holliday Overland Mail Express C?fnpal1Y,"lJut it that the subsequant cban-ge'its name to "Wells, & Company" failed 'of; fore there: ik rid ico;'poratioh orthatnaine. !' '", It a,ppears thatsectidri11) of' 'the aC,t!inqorp,drating the jI611alb,y Overland' & . Express a provision"that "saideoinpany may change it'S' illtme "whenever the safue be 'ordered by thevo'te of a of the board Of at a duly convehed' fottb.at purpose: ,prOVIded, 8hll.ngJ is approvedalsO'bjr It 'niaj'6rHy thee a by a 'caUfrom the meeting of the compatiy;" '. · . '.. ".,. ." ,.. : The bills' allege that 12,1866, ,and pursuttntto t'he power conferredbj secti9n '11 'of s[tid' act: of hblders of' 'the "said 'Holladay & duly changed its said corpo,rat,e name to the name of'W & Company;' and sniJh w-as' 4uly approved by' an act df lature of'Colorado; passed'Jil.Wu'a'tY'M,' 'UJ72.·.. · defendant upon! this point'ia·that Ii stock:hbli1'Eilrs"meeting 'bJtild"'not change the name of the 'the adt the shtiuld' take i)j'the !act oft11a 'directors, '\Ht1'1th:e 'lipproval of Of aCt
by
of
or
t\lg
'5
this court held that ;19' of the Oregon: corporation act', (Or. Laws, 528;) which prdvldesthat a meeting of thestockholderli of
566 a corporation may "4utho,rizethe dissolution" thereof, ,that such \':ote' did not ,the but only empow\3red the directors, by whom a.ll .. of the corporatipn were exercised unless other;Laws, p.. 526, § 9')Jto take the necessary wisespeciaqy steps for its dissolutio.n,and winding up oqts affairll. But the cases, so fadrom being parallw.,arejust the rever;se .. The act gave the 'in the matter to the directors and the final effective action' to the while the OregoJ?- act gives the initiativeto the stockholders and the actual determination of the question to dlrect<;lr.a. · M,y'. impression is that upon the facts stated thethe of the corporation was duly changed. And, first, it is alleged 4ave been done by the stockholders suant to the power)conferred" on them by the.,actauthorizing is, to it i and to have been "duly" done' by t4.et;ti,-that is, according t,o law. Upon these allegations, and until the contrary a,Ppears, H ought to be presumEld that the action :ta.ij:.enaftl'lJ: the order of the rect'oxsj rather than'without it. ' . ' , . , .. ' And, second, taking into the ,WAole provision on tIl,a the ,name a.nathe ref1/lo,nof it, the act ought to be, ,conl;ltrued a.s pr!lct.iQally gh;-hig t.he.power to make the change to· a,bsolutely, with or. without the preliminary order of the 4i.rectors. The' latter are the name, but an order that it m,.ay be done. by the "company," and then comes the pro;iso and. gives the final power pver subjoot to the"stockholders." The directors are the mere agents of the stockholders, and the clause giving them authority to order the change becomes a mere regulation of convenience concerning the met40d and order in which the thing is to be done, and not the essence of it. It is, directory. Sprigg v. Stump, 7 Sawy. 286, and cases there cited.' In Rexv. Loxdale,l Burr. 447, Lord said: "There is a known distinction between the circ'Q,mstances which are of the essence'of a thing required to be done by an act of padiament and clauBEls merely directory." It eonlilider what was the effect of the' act of 'January 26, to. legalize the alleged change of For, the defendants, it is contended ft(!t is invalid as beill'gin con1,lic.twiths6,ction 1 of. of March 2, 1867, (14 St. 426; 18SU, Rev. St.,) forbidding the legiSlature of a territory '."'., !,' '.) -. : -, ,'. . . , . : -,. . ;.),
"to grant privat.e:ehal"ters·orspecial privileges/1 but .permitting it,to provide for the' ft11"mationofcorporations' by "genera.l corporation acts." '.! i .: ; , This argument assumes that a legislative act naming or changing the name ,of a corporation is so far an act authorizing the formation, of a corporation,-a calling it into existence or .conferring UpO.\l ita special privilege,,-and Newby,v: Oregon Gent. By. Co. 1 Deady,:&l Q; is ·cited as showing that "tb corporate name is-a necessary, elementof the, corporation's existenee," without which "a corpora.tion cann<>teldst." But this remark must be considered as made with reference to a cor-, poration formed under the.corporation act ,of, Oregonj,86ction4: of of :incorwhich (Or. Laws, 525) expressly provides, that the poration "shall specify the' name assumed, by the corporatiot;l and by which it shall be known." ,A:ndye.tthe law might provide thl'lit A., B., and C. should constitute Qrbe, formed into a eorporatioll f()r.lliny purpose without ,or deaignation.From the, necessity of the case it would have to be delleribed, rathedhan muned, as A.; B., andC.,a'oorporation duly created or formed ata cettain -date for a certain purpose, andintime.it might a.qquirethe ij,ame of "the A., B. C. "railwayor stea.w-boat company, as the o8sa,might be" Idoubt,then, if section 1889 of the Revised Statutes does pxohil;>jt. a territorial or changing thenameof"p,n -existing corpora.tio.n, be.cause :such act is nQ,t a "charter"ct'eathig a one 'privilege;" within tbe:meatling. of the section., To; .name a corporation is not to i.t any more than a ,p.el'son. Nor, does it cQnfer,.on ita speciabpri;vilege. or The privilege of having a, name is, not·.thereby but may he enj.oyed by every corporation thwt ha.s wit to devise ,one, upon thesa.me\erms., See Southern JPac., fly. Co. v. O"tol'Ii.6Sawy.185. But the attetilpt:to legalize the change of name may be ,said, to be an admission of its invalidity. Yet it must be ,.thaitthe matter of the change is lumped in the legalizing ,a,CJt with changes in the capital atQ(lk, alldother and proceedings oUhe corpora.. ' tion j" therefm'ethe validation of ,the change .ofna.mema.y ha.ve had very little, to do with of the,act. tio'll geta' force from the recita.l in theprenmble. to the ,nc4i.JQ :the effect that the nl!>Ule had been changed to .wells I Fargo & :Company by "the ,board of director,s a.ndstockholders/'. : . ,I'; As to ,the of, the sta.tementof the :facilities allowed the pla,intiffs on the defendMlt'sJi:ues, ;and which will bereafter. be i
568
FEDERAL REPORTER.
required thereon for the transaction of its business, my impression is that the bills are probably explicit enough, though I think they might well have been made more so. But "express facilities" is a term whichl from the nature of things, must by this time be pretty well understood between the parties most interested-the express com· panyand the railway company. A.s interpreted by the ·customs and usages of these parties, and sanctionedand,adopted by,the decisions of the courts, these facilities may be sa,id to include the right, to enter depots' and stations with loaded and empty wagons; thee use of the pla;tforms and space for the loading and unloadingiof 'express freight; sufficient space in suitable 3ars,drtl.wn in passenger ()r quick tJ:ll.ine;fcr the transportation of such freight; and a mesaenger in charge; thereof; with room for, its while in transit, and.l 11dnkftl.6ient delay at 'stations for the' delivery fltndreceipt of expr.essniatter.Southern Exp. Co.v.Iron, etc.; Ry; 00. .10 FFD. :REP;' 213, 869; Southern Exp. Co. v. Memphis" etc., Ry. '00;8 FED; ,REP'.S02. "Express'facilities,'lftom the nature of the business, cannot be limited to a definite space, but must (}orrespond in this and other particulars to the public want and convenience to which the express companyministers. In these caSes there can be no difficuUy',for the present in ascertaining tb:efacilities required by the plaintiff. For the purposes of this application they are such ItS it hallheretufore been allowed. Underthe restraining orders allowed on the filing of. the bills, the defendants are now furnishing and the plaintiff is receiving just such to either party. But the third facilities without any objection, that the defendants cann6t be required under their charter and the laws of the state to afford the plaintiff the facilities demanded, or to give it a preference over shippers in the transportation of freight. is the one principally :relied on by the defendants to defeat these applications for injunctions. Upon this point, the arguments and brief of counsel for defendants have left nothing unsaid in their behalf. Briefly, the is this: A.t common law, while a common carrier must carry for all at a reasonable compensation, which must be settled by the courts .if not agreed on by the parties, still he may dis· criminate in his charges by carrying in 'some instances for less than a rea.sonable compensation, if he ohooses. There is no statute in Oregon changing this rule of the common law, or requiring a corpo· ration to transport freight in a passenger train, and in the cnstody or under the control of the shipper, therefore, the defenJants cannot Le
WELLS.: V. OREGON RY. & N. CO.
reqilired to carry freight for the plaintiff at the same rate they may for others, or to furnish it any such facilities. In short, it is denied that either under the laws of Oregon or the past dealings between the parties, "it is the duty of the defendants to .permit an express business to be done over their lities of transportation a.t all, in the manner required by the plaintiff," and therefore they may refuse to doso,i'f they please. In passing upon this question, at this preliminary stage of these cases, I do not deem it necessary to do more than to state· myimpression of the law as applicable thereto. .. In the case of the Southern EJ;. 00. v. St; Louis, etc., -Ry. 00.;
Same v. Memphis, etc., By. 00.; Dinsmore v. Missouri, etc., By. 00.; Same v.Atchison, etc., By. 00.; Same v. Denver. etc., By- 00., 10 FED. REP. 210, arising in· Missouri, Arkansas, KanEias, and Colorado, and lately heard together at St.Louis before Mr. JusticeMIIiLER,of the supreme court, and Circuit Judge MOCRARY, ,the defendants were perpetually 'enjoined from .refusing or -withholding the usual eipress facilities from the: In the opinion delivered by Mr:o Justice MILLER it ililstated that "the express business is a. branch of thecarrying trade ,that has, by. the necessities' of commerce' and. the usages of those engaged in transportation,become known'and recognized," and 8ufficiently so "to require the comito take-notioe of it'as distinct from the transportation of tbe-large mass of uS,ually carried on on steam-boats and railroads;" and "that the object of this expFess business is to carry small and valuable packages rapidly. in sucb manner as not to subject them to tbe danger of 108s and damage which to a greater orles8 degree attends the transportatioll of heavy or bulky articles of commerce, as grain, flour, iron, ordinary merchandise, and the like." And also that "it has become law and usage, and is one of the neces8ities of this bUSIness, that these packages should be in the immediate charge of 'an agent or messenger of the person or company engaged in it," without any right oD; the part of the railway company "to open and inspMt" them; that it is "the duty of every raiiroad company to provide such conveyance by spocial cars or otherwbe, attached to their freight or passenger trains, as are required for the safe and proper transportation of this express matter on their roads, and that the use of these facilities should be extended on equal terms to all who are actually engaged in the express business at fair and reasonable rates of compensation;" to be determined by the court where the parties cannot agree thereon; and that a court of equity "has authority to compel the railnmd com-
FEDBRAL REPORTER.
pania'S to oitrry this eipressri1atter arid to perform the duties in that respect" lis indicated. Substantially the same conclusion bad been reached by several other judges; in ,the United States circuit bouds in the same and similar cases reported 'in 2 FEn. REP. 465; 3 FED. REP. 593; ld. 775; 4 lhm.REPl 481;6 'FED,REP. 426; '8 FED. REP. 799. The only ca,se cited from the decisions of the federal courts to the eohtra.ry'of these is Ckambloiv.,PoA., etc., l-ly. ,Co. 4 Brewst. 563, inwitich 'apreliminary.injunctionwas.- refused by Judge McKENNAN in a similar case; and also thebaS8 of New England Exp. Co. v. M'aineietc., Ry,. 00,' 51'"Me, 194, and Be£t'rgeht v; Boston, etc., Ry.co. 115M,:.ass. '416, in which the';rigM of. an express. company towha:.t are.. 'as.etprestda'cilities on the' defendants' roads was .denied. But'itheJ'Veryi decided·iw.eight and number of: thesea.uthorif.ies recognize the 'exisWno$ of' theex-preBs' bilsmess and the right ,of those engagedJinitJto.ha.ve. the proper'facilities therefor allowed them by the deftindants, and' to secuTeihe eame ,injunction incase they aoo. refused.' .Until this. question, is settled. by, the supreme. court, tl!leBe delibel'ateddecisioDs. of cO-Grdinat&. triblUlals, .like the .circuit courts, oughtpelleeptJ in an' extreme:cas8, todurbish a gujdeJor the decision'of!lthisi.eourt. Thie IS the· Jr111e tbat h",s been followed by justicesof1he Bupremecoart chcuit, (Wa,qhburn v. Gould, 3 Stovy;, 183; Brooks 'Bicknell"S McLean,250; American, etc., Co. v. Fiber, etc.,Oo.S Fisher, 863,) and in Goodyear, etc., Co. v.Mules, 7 O.G.40, JudgeEMMClNs examines the question at some length, and conoludes thtJ.t uif one .system .(i)f .co-ordinatecourtsmore than another oallsfor .of these general principles, it is tht of the circuit courts of the United States. iii · · Although divided in jurisdiction, geographically, they constitute a single system, andwhen' one cQurt has 'fullyoonsidered and deliberately decided a question f every suggestion of pro,pEiety and fit public action, demand that it should be followed 'until modified by the appellate court." HQ:wever; my own of the law are in harmony with these rulings. If the defe,ndants were. merely private common carriers, and thefact being admitted, which is matlifest, that within the last 30 or 40 years persons or orgaqiimtioDs known as expressmen or express companies .have grown up in,:thei country and introduced and are conducting the. business of transporting aolass of comparatively small but valuable packages over railway lines in special cars attached to passenger trains in the charge of an agent, the same being collected and delivered by said companies at points beyond the line or termini
WELLS V. OREGON
N. CO.
,571
·of the railway, it would be their duty'to furnisb the usual facilities for such transportation over their lines. The" .obligatiohof a common carrier, as that of others who serve the pU.blie, may vary with the condition and circumstances of society. What-is suitable and convenient in one age' is not in 'another. iildividuala who constitute the publil1 have foulld it convenient toempilly the express companies to transport certain articles for themillstead of: attending to it in. So far,then, these comp8lnies the'p1;lblic, and .af8 ;it has become ain 6stlthlishedusa.ge andeommon metfi<;>d in the cairying trade to transpor1;, Buch paokages.iil" the charge of the shipper in a especial car, on they have the Bame right to demand and :receive these facili£ies at the hands of the defendants as would any oneo! the indivi.dualswhotnthey represent. But the defendants are common carriers, and more: They 'are also corpo,;.· rations created by the state for the public use, and may be com:pelled to perform their corporate functions accordingly. True, the stock of the 'defendants ds private 'property, and :their businesSl is directly managed by private of their own selection. But, nevertheless, the prime purpose or their creation and .existence is to furnish the public suita.ble and convenient facilities, for tion of freight and passengers. It is the business of the state to establish and mll;intain highways, as means of transportation and communication within its borders, and to 'this end it: created these defendants, a.uthorized. them to condemn private property to their use, to constru"ct and operate their roads, and to take tolls for carrying freight and 'passengers thereon. Talcott v. Township of Pine Grove, 1 144:; Peoplev. N. Y; Cent. Ry. Co. (N. Y. Sup. Ct.) Daily Register, Feb. 10, 1883; Ry. 00. v. Maryland, 21 WalL 470. The defendants having been created by the authority of the state to serve the public as common carriers, cannot 'lawfully omit or refuse to perform th8ir duty in this respect. They exist to do the business of a common carrier, and to do it in that way and manner which the law directs or the well-established usage of the country requires. For this service they are entitled to a reasonable compensation. But it can make no difference to them whether such compensation is paid directly by the owner of the package transported, or by the plaintiff as his bailee and agent. Neither is the business of the plaintiff in any sense or degree a burden or tax upon the corporate facilities or resources of the defendants. On the contrary, it is, from the very" nature of things, of benefit to them; for, by reason of the special
I
572
?EDERAL RBPORrER.
means it uses to collect, care for in transit, and deliver the freight can fided to its custody on and beyond the line of the railway, it must contribute materially to the volume and value of the business done thereon. In c<l'nsidering this phase .0£ the .question r have laid out of view that the plaintiff has expended time and money in the building,up its express business onand:over the defendants' lines of transportation, which it would be unjustand,iuequitable now to deny it the furtberuae. and benefit of., AndJrest my conclusions on the that tbenexpress hashecome fact, as stated by Mr. JUlil'tice a recognized branch of the ca:rryil)gtJ:ade, aT,ld therefore the defendants, being corporations required andauth<:>rized by the stateto\serve the public as,. and tra.nsactthe business of, common O$1'riers,are bound to furnish the plainWf, as the agent,.bailee, and-representative of· the public, so £a1;, with the proper and usultl facilities for doing this branch of snchtrade. . This makes it unnecessary to consider the fonrth objection of the ilefendants, that the plaintiff :is not, by rea.sori of the facilities fore ·afforded H on existing linesoHransportation, entitled to the relief sought as to any future extensions thereof. And this brings me to the consideration of the' fifth and last objeption, that the court has no power to determine the compensation to be paid by the tiff to the defendants for the services.demanded. Counsel for thedefendants rest this objectic;lU on the.ground that the state, in and by sectioll 36 of has. contracted with the defendants that·, they may.charge such tolls (BS they may see proper, and that, therefore,. they cann'ot be required to. carry freight fartha .plaintiff on any other terms or conditions. Section 2 of article 11 of the state constitution is also cited. It provides that corporations, exoeptmunicipal ones, shall not be cre· ated by speciallaws;!1md "all laws,pa.ssedpursuant to this section may be altered, amended, or repealed, but not so as to impair 01' destroy any. vested corporate rights." Section 36 of.thecorporation adt (Or. Laws, 582) provides: " Every corporation formed under this chapter for the construction of a railway, as to such road, shall be deemed common carriers, and shall have power to collect and receive such tolls or freights for the transportation of persons or property thereon as.it may prescribe,"
It is not apparent that this constitutional provision has any bearing on the question under consideration. The legislature has not undertaken to repeal or modify section 3G of the corporation act, and
WELLS V. OREGON flY. &N. CO.
578
this court is bound in the mean time to allow it'full force and effect. If it constitutes a contract between the state and the defendants, by which they are absolutely and perpetnally authorized to,fit their own claimed by their couneel, it )a charges for tected from hostile legislation by section 10 of article 1 of the federa1 constitutipn. ,But if it.is not a eontract at all, bllt a mere sion for the time being, then it is nota vested right, but a matter subj.ectto the power of the legislature. However this may .be, it is in the mean time a law of the state applicable tO,the subjeetQf,the right of the defendants to take tolls, wbich, this .court· mJ1.stco:tlst.rue anl1give effect to aJ)cordingly. ' , J And, first, the righttQtake tolls. on a highway is an, attribute' of sovereignty, and cannot be exercised by the defendan.ts without the authority of the state. ItmlliY be said that the authority to forin a corpQration to construct and operate a highway, as a 'impliedly gives the right. to take reasonable tolls. for trruffic thereon. But this has not always been conceded, and it. is probable that the clause concerning tolls was inserted iIi this section prima. rily to autborizethe taking of tolls at all, and then, for the ,time be· ing at least, only in such, amount as the corporation might prescribe; that is,fi,x and set down beforeharid, and not accor-dingtothe whim or caprice of et:.ch occasion. Oharles, River Bridge 'Y.. Wa!Ni'en Bridge, 11 Pet. 544. Again, the legislature,.:in this section, .is sumed to hl\ve acted with knowledge ofll,nd reference to the fact that by the common law a oommon cll,rrier was only entitled to a reasonable compensation/for his services. ,The refl,sonable from 'the' circumstances is that the legof the premises, intended to confer upon the islature, corporation, so lOftS as it maintained aud operated its road as a way, conducted by a common carrier, lI,t least the authority to take reasonable tolls; in othe.r words, the duty and obligation bf' a common carrier being imposed on the defendants, they were granted the corresponding privilege of charging a reasonable compensation for And so far, I think, this section is a contract between their the state and the defendants, the obligation of which it is beyond the power of the latter anywise to, impair, (section 10, art. 1, U. S. Const.,)' or any court to disregard. But, in my judgment, the section was not intended to do more than this, and ought not to be otherwise construed. It is a license or grant to the defendants upon sufficient considera·, tion tQ take such tolls for freight and passengers as are consistent
;"FEDERAL REPORTER·.
with the duty and obligation they owe to the public as common car· flel'S.
It is well settled that a grant of this kind.is n!s"Ver to be construed beyond its plain, terms,or coritraryto the mitnifesheason of it; and if there is areasonablEi doubta.sto i.tescope 01' meaning, that doubt must be resolved in favor of the public or state. Oharles River Bridgev. Warren Bridge, supra, 544, 600; Cooley, Const. Lim. 894, and the cases there cited. And this question seems i:n effect to have been similarly dIsposed of by Mr. Justice MILLER in the case of the Southern Express Co. nSt. Louis, etc., Fly. Co. 10 FED. REP. supra. For, in the answer of the defendant, as appears from a quotation therefrom in the brief of counsel for the plaintiff, it is stated that under its charter it was authorized to transport aU articles usually carried on railways, and "to charge and receive such tolls and freights" therefor "as shall be to. the interest of the same, ahd that the directors of the deferidant are therein authorized to establish such tolls, and to alter the same from timerto time;" and in the opinion allowing the final injunction he says, (10 FED. REP. 215:) "I am of the opinion that neither the statutes nor constitutions of Arkansas or Missouri were intended to affect the right asserted in these cases; nor do they present any obstacle to such decret:ls as may enforce the rights of the ex· press companies)' Under the circumstances, this language can only be understood as a decision that the grant to the Missouri corporation to take tolls in similar if not stronger language than the Oregon one, is to. be taken and ,considered as a grant to take only reasonable tolls. The question of the power or right of the defendants to engage in the express business at all, at least the accessorial service of collecting and distributing packages off their lines of transportation, has been argued also, but it is not necessary now to consider it. The plaintiff does not ask to exclude the defendants from the business, but only that it may be permitted to carry it on as heretofore. On the whole, I am of the opiuionthat the plaintiff is entitled to the relief sought, and therefore ought to be secured by injunction, until the final hearing, in the use of the facilities for conducting its business heretofore allowed it by the defendants. A special reason for allowing the provisional injunction is also found in the fact that by exacting the proper security from the plaintiff, the defendants will not be injured, even if it should be finally determined that the plaintiff is not entitled to relief; while if the in-
KICKAI,S
7;.
NElWt:ORK, L.'El&
w.
R. 00.
junction is not now allowed, its business w,-ill be like water spilled on t,he ,Kerr, Inj. , secured by the operation Qf.section 36'of the 'oorporation act, a9 now construed,it;l the ,right td'take ,reasonable ,,rolls; re,ttsonable can agree about determined, ,by th(l: But, for the. purpose of the provisiona.l the,cburt,willasmnIe that ·the cOmpensation heretofore paid by the plaintiff t6;th'e defend'ants for expresll facilities, is ,l;I.Jld will to Ju.mish .qurmg tbependencjY Qf, the suit, olJuntil .. furtberorder of the court, upon their lines of transportation, and; the extenSidtts of them, at the same r a t e s . ' " Let an injunction issue commanding an4 restrainip({ in each case, as prayed for in the Dond, wi,tp in the sum ot. $20,000, .to pay .a as heretofore, an aimlages 'which J deferidant may stlstaiilhy .reason of th,is,' ·Jtin'ction, be to 'a reference or otherWIse, as court may duecl. v.J! :ley, 443.,r!' .\ , , ii, ',;, !
n,'I
NtoXALS 'and others ".NBWYoRX;:L. E., & "'"
The dividend onpreferred 'stock may judiciously be conditioned on the declaration Qf"profits by the board of directors of a corporation ; and when such intention appears from the juxtaposition of terms, and an. examination of the agreement of the it will be sustained. , I . 2. SAME-NATURE OF PROFITS.
That a board of directors has dete.rmined to apply all profits made by a road present character. ,In this respect to its improvement does not take away net earnings and profits are alike; and, largely at least, the improvement would be chargeablll to capital. 3. SAME-RIGHT' TO 'COMPEL DIVISION. The rights ,Of preferred stockholders are not those of creditors; but still tpey
may, under the plan of organization of a corporation, be made so far superior to those of common stockholders as to enable tbem to compei a division 01 profit.&, which the board of directors had determined to accumulate. -Reversed. See 7 Sup. Ct. Rep. 2O'J·.