Baltimore & O. R. Co. v. Adams Express Co.

• Decision Date: 20 November 1884
• Citation: 22 F. 404
• Parties: BALTIMORE & O.R. CO. and another v. ADAMS EXPRESS CO.
• Court: U.S. District Court — District of Maryland

22 F. 404

BALTIMORE & O.R. CO. and another v. ADAMS EXPRESS CO.

United States Circuit Court, D. Maryland.

November 20, 1884

Cowen &amp Cross, for complainants.

R Stockett Matthews and I. Nevitt Steele, for defendant.

Before BOND and MORRIS, JJ.

MORRIS J.

This bill is filed by the Baltimore & Ohio Railroad Company, a corporation of the state of Maryland, and the Baltimore &amp Ohio Express Company, a corporation of the state of Ohio against the Adams Express Company, alleged in the bill to be a corporation under the laws of the state of New York, and a citizen of the state of New York. The bill alleges that the Baltimore & Ohio Railroad Company, with its railroad, and those which it controls by lease or ownership, constitutes one of the through trunk lines of the United States between the east and west, and that by an act of the Maryland legislature of 1882 it is authorized to do an express business such as is done by express companies organized to do an express business such as is done by express companies organized for that purpose. It is alleged on behalf of the Baltimore & Ohio Express Company of Ohio that it is engaged in the express business in the west over the railroad lines controlled by the Baltimore & Ohio Railroad Company, and, in conjunction with the Baltimore & Ohio Railroad Company, is operating the Baltimore & Ohio Express over the lines between Cincinnati, Baltimore, New York, and elsewhere. It is alleged that the Baltimore & Ohio Railroad Company, in the development and conduct of this express business, has, in connection with the Baltimore & Ohio Express Company of Ohio, expended large sums of money in the purchase of horses, wagons, and other property suitable for that use, and has established offices in St. Louis, Cincinnati, Chicago, Washington, Baltimore, Philadelphia, and New York, and many other cities, and is doing a very large and profitable business in carrying goods, money, valuables, oysters, fruits, and perishable goods. It is alleged that the Adams Express Company, the United States Express Company, the American Express Company, the Southern Express Company, and the Southern & Pacific Express Company, and Wells, Fargo & Co., in connection with complainants, do a large portion of the express business of the country, and that it is the universal custom of said companies to receive from and deliver to each other packages for points beyond their own routes, so that a package for a distant point is transferred from one express company to another as often as required to reach its destination, and that in order to facilitate dispatch, promptness, and simplicity in these transfers there has grown up a custom, which is universal, by which the receiving company pays to the tendering company all charges which have accrued for carriage to the point of tender, known as 'accrued charges,' so that the last company, having advanced all the accrued charges, receives from the consignee and retains the whole amount of charges to the point of destination. It is alleged that experience has proved that this method of doing business is entirely safe, as the advancing company is protected by its lien on the goods and its right of recourse against the company to which the advance is made, and that in fact it very rarely happens that the consignee refuses to accept the package and pay the charges on it. It is alleged that this practice of advancing accrued charges is essential to the quick and simple transfer of express packages from one company's line to another, and that without it the express business as now conducted could not be carried on, and that any company which is denied this facility would not be able to compete in the same business with another company to which it was granted, and would find it impossible to do a general express business, and would lose its customers. It is alleged that the Adams, the United States, and the American Express Companies, with which the complainants have been doing a large business on the basis of said facility, have combined together, and have notified complainants that after the fifteenth of October, 1884, they would not advance charges on express matter transferred to them by complainants. It is alleged that this combined action of said companies is designed to cause and will cause great and irreparable injury to complainants, and will be destructive to their business. It is alleged that the Adams, the United States, and the American Express Companies, although they have notified complainants of their intention to refuse to advance charges to them, will continue to afford to each other the facilities refused to complainants, with the design to further their own business in competition with complainants.

The prayer is for a preliminary injunction restraining the Adams Express Company, the defendant, for refusing to accept parcels tendered it by complainants, and from refusing to pay the advance charges thereon, according to the usage theretofore recognized and observed by said company in its dealings with complainants, and requiring defendant to afford the same business facilities to the same extent to complainants which it affords to other express companies, and for other relief. At this hearing of the motion for a preliminary injunction it is urged by defendant's counsel that the bill is defective in that the Baltimore & Ohio Railroad Company and the Baltimore & Ohio Express Company are joined as complainants without any sufficient allegation of a joint interest in the express business, which, it is alleged, is injured by defendant's action; so that it does not appear but that the injury which complainants allege they apprehend may be a distinct and separate injury to each complainant corporation, and not a joint injury. The objection is, in its nature, a demurrer to the bill. The allegation of the bill is that the Baltimore & Ohio Express Company is engaged in sending express matter over the lines of road connected with the Baltimore & Ohio Railroad Company in the west, and, in conjunction with the Baltimore & Ohio Railroad Company, operates the Baltimore & Ohio Express over the line between Cincinnati, Baltimore, New York, and elsewhere. In our opinion, this allegation may be true and yet consistent with a state of facts which would make the injury to each corporation separate and distinct. The bill, therefore, must be amended either by dismissing one of the complainants, or, if the apprehended injury be in fact a joint injury, by making the allegation to that effect sufficiently explicit.

The second objection is to the jurisdiction of the court, and is made by a plea in abatement, in which it is alleged that the Adams Express Company is not a corporation or joint-stock association, but a simple copartnership, the parties interested therein having in 1854 signed written articles still in force, and that 44 of said copartners are residents in and citizens of the state of Maryland. The conceded fact is that the Adams Express Company is a joint-stock association consisting of some 2,500 shareholders, citizens of many different states, organized under the laws of the state of New York, having a president, treasurer, and other officers, and a board of managers, and that its shares are freely dealt in on the stock market. The New York statutes applicable to such an organization may be found in 3 Rev.St.N.Y. 1875, p. 762; 2 Rev.St.N.Y. 1882, (7th Ed.) p. 1543; Code Civil Proc. Sec. 1919; Const. N.Y. art. 8, Sec. 3. By one section of these statutes it is provided that the associations mentioned therein shall not have the rights or privileges of corporations, except as therein provided; but that they have the essential attributes of corporations has been declared by the courts of New York.

In Waterbury v. Merchants' Union Exp. Co. 50 Barb. 160, the supreme court said:

'By an examination of these statutes it will be found that joint-stock companies possess the following qualities or attributes of corporations: (1) They can, like corporations, sue and be sued in a single or collective name, to-wit, the name of their president or treasurer. (2) Their property or capital is represented in shares or certificates of stock, differing in no respect from shares or stock certificates of corporations. (3) The death of a member, his insolvency, or the sale or transfer of his interest, is not a dissolution of the company. (4) They have perpetual succession, or what is sometimes called the immortality of corporations. (5) They can take and hold real and personal estate in a collective capacity and in perpetual succession. Corporations have no other attributes except the technical one of a common seal.'

The statute provides that such an association may sue and be sued in the name of the president or treasurer for the time being and provides that the president and treasurer shall not be liable by reason of such suit in his own person or property, but that the suit shall affect only the joint property of the association. It is intimated by the New York court of appeals (60 N.Y. 532) that the officers who have thus by the statute legal succession are...