Northern Pac. Express Co. v. Metschan

• Decision Date: 03 October 1898
• Docket Number: 428.
• Citation: 90 F. 80
• Parties: NORTHERN PAC. EXP. CO. v. METSCHAN.
• Court: U.S. Court of Appeals — Ninth Circuit

90 F. 80

NORTHERN PAC. EXP. CO. v. METSCHAN.

No. 428.

United States Court of Appeals, Ninth Circuit.

October 3, 1898

This is an action to recover 50 bonds of the city of Portland, in the state of Oregon, known as 'Portland Water Bonds,' or the value thereof, $70,000, in case delivery cannot be had. The complaint is based upon the provisions of the Oregon statutes for an action in the nature of replevin to recover specific personal property. The complaint states substantially: That 'plaintiff is a corporation duly incorporated, organized, and existing under and by virtue of the laws of the state of Minnesota, and is a citizen of the state of Minnesota, and is engaged in the express business in the state of Oregon.

That the defendant is a citizen and resident of the state of Oregon. That the plaintiff is the owner and is entitled to the immediate possession of fifty bonds of the city of Portland, known as 'Portland Water Bonds,' to wit numbers 256 to 305, inclusive, each of the face value of $1,000, with interest coupons attached thereto. That the value of the said bonds is $70,000. That the defendant wrongfully and unlawfully detains the said bonds, and keeps possession thereof, within the state and district of Oregon although plaintiff has frequently demanded the same from the defendant. That the defendant is the duly elected, qualified, and acting state treasurer of the state of Oregon, and that the defendant pretends to have power, by virtue of the said office, to hold the said bonds, and to keep the possession thereof, in order that he may collect and receive certain fees and emoluments allowed to the state treasurer by law for the safe-keeping of bonds and securities required by law to be kept in the custody of the state treasurer, but that in fact (and) in truth he is not empowered by any law to hold or keep possession of the said bonds, or to exact or to collect any fees or emoluments for keeping them. That the said defendant claims that he is entitled to so hold possession of the said bonds as a deposit from plaintiff under and by virtue of sections 1, 2, and 3 of an act of the legislative assembly of the state of Oregon entitled 'An act to amend an act to regulate and tax foreign insurance and express corporations or associations, doing business in this state,' approved October 21, 1864, amended and approved December 19, 1865, and which said section is printed in the compilation of the Miscellaneous Laws of the State of Oregon compiled and annotated by Matthew P. Deady and Lafayette plane (1872) at page 616 thereof; the same being section 1 of chapter 24 of the Miscellaneous Laws of the State of Oregon. But the plaintiff alleges that the said sections of the said statute have been repealed by section 25 of an act of the legislative assembly of the state of Oregon entitled 'An act to license and regulate insurance business in the state of Oregon,' filed in the office of the secretary of state February 25, 1887, and which is in effect by operation of the constitution of the state of Oregon. That the defendant so holds and keeps possession of the plaintiff's said property without due or any process of law, and in violation of the rights guarantied to the plaintiff by the constitution of the United States. That by reason of the premises the plaintiff is damaged in the sum of seventy thousand dollars ($70,000). ' A demurrer was filed by the defendant to this complaint on the ground that the same does not state facts sufficient to constitute a cause of action. The demurrer was sustained, and a judgment entered dismissing the complaint. For the alleged error in sustaining the demurrer and entering the judgment this writ of error is prosecuted.

The act of the legislature of the state of Oregon entitled 'An act to regulate and tax foreign insurance, banking, express and exchange corporations or associations, doing business in this state,' approved October 21, 1864, provided, in section 1, that no foreign corporation or association should be permitted to transact the business of life, fire, or marine insurance, brokerage, exchange, or express, within the limits of the state, without first complying with the provisions of section 2 of the act. Section 2 required that every such corporation, before doing the business of life, fire, or marine insurance, or banking, brokerage, exchange, or express, should deposit with the treasurer of the county in which the principal office or agency is located the sum of $50,000. Section 3 required that such deposit should be made in the interest-bearing bonds of the United States, and should be safely kept for the benefit and security of persons transacting business with such corporations or associations in the state, for claims and demands arising out of said business, and should be held and considered specially pledged for such security for such claims and demands. Gen. Laws Or. 1845-1864, compiled and annotated by M. P. Deady (page 745). In 1865 the legislature passed an act entitled 'An act to amend an act entitled 'An act to regulate and tax foreign insurance and express corporations or associations doing business in this state,' approved October 21, 1864. ' This act was approved December 19, 1865. Its purpose appears to have been to exempt life insurance, banking, and exchange corporations from the requirements of the act of 1864; and it sought to accomplish this purpose by omitting from the title of the original act the words, 'banking' and 'exchange,' and from the body of the statute the words 'life,' 'banking,' and 'exchange.' Another amendment was to require that the deposit should be made in interest-bearing bonds of the United States, 'or the bonds of the state of Oregon. ' Laws 1865, p. 21. By an act approved October 24, 1870, the legislature amended the act of 1864 as amended by the act of 1865. The title of this act is, 'An act to amend an act entitled 'An act to regulate and tax foreign insurance and express corporations or associations doing business in this state,' approved October 21, 1864; amended and approved December 19, 1865. ' The purpose of this amendatory act was to require that the deposit of $50,000 should be made with the treasurer of the state, instead of the treasurer of the county, in which the principal office or agency is located, as provided in the original act. The words 'banking' and 'exchange' were again omitted from the title of the original act. Laws 1870, p. 46. In 1887 the legislature passed an act entitled 'An act to license and regulate insurance business in the state of Oregon. ' It was provided in section 6 of this act that every foreign corporation, before engaging in the business of fire or marine insurance or express, should deposit with the treasurer of the state the sum of $50,000; and it was further provided that the deposit should be made in interest-bearing bonds of the United States, or the bonds of the state of Oregon, or any municipal, school district, county, or town, bonds, issued by legal authority in the state of Oregon, the market values of which are at or above par. The purpose of this act was to re-enact the statutes in force regulating the insurance and express business, and to so amend the same as to give to the corporations named the privilege of depositing certain bonds of a local character in lieu of national and state bonds, as required by previous acts. It also provided, in section 25, that sections 1, 2, 3, and 16, c. 24, of the Miscellaneous Laws of Oregon, and acts and parts of acts in conflict therewith, should be thereby repealed. Laws 1887, p. 118. The sections repealed were section 1 of ...