Wells, Fargo & Co. v. Northern Pac. Ry. Co.

• Decision Date: 19 November 1884
• Citation: 23 F. 469
• Parties: WELLS, FARGO & CO. v. NORTHERN PAC. RY. CO.
• Court: U.S. District Court — District of Oregon

23 F. 469

WELLS, FARGO & CO. v. NORTHERN PAC. RY. CO.

United States Circuit Court, D. Oregon.

November 19, 1884

M. W Fechheimer, for plaintiff.

James McNaught and C. B. Bellinger, for defendant.

DEADY J., (orally.)

This is a suit brought to restrain or constrain the defendant to furnish the plaintiff with express facilities upon its railway from Portland to Tacoma, and from Wallula junction to St. Paul, and branches between those points. It is brought by Wells, Fargo & Co., a corporation organized by a special act of the territory of Colorado in 1866, whereby it is authorized to engage in the express business, and to draw drafts and bills of exchange, or sell or buy the same in the course of such business. The act itself, section 1, provides 'That Ben Holladay, David Street, Bela M. Hughes, S. L M. Barlow, and John E. Russell, and their associates successors, and assigns, be and they are hereby declared to be a body corporate and politic, by the name of the Holladay Overland Mail & Express Company, and by such name shall have continual succession, with power to sue and be sued, plead and be impleaded, complain and defend in any court of law or equity; to adopt and use a common seal, and change the same; to purchase, hold, mortgage, and convey any estate or property, real or personal, for the use and benefit of said corporation; to take, to hold, and dispose of any mortgage on real or personal estate; to establish, maintain, and operate any express, stage, or passenger, or transportation route or routes, by land or water, for the conveyance of persons, mail, or property of any kind, from, to and between any place or places in Colorado territory, and any place or places beyond the limits thereof; to erect, or hire and maintain warehouses or other structures for the safe keeping of goods, wares, merchandise, or other chattels or effects, and the transaction of business; and for the purpose of facilitating exchange between the several places at which said corporation may transact business, the said company shall have power to draw, accept, indorse, guaranty, buy, sell, and negotiate drafts and bills of exchange, inland and foreign; to receive coin, money, silver, and gold, in any form or other, and any kind of valuables on deposit at its offices, and make orders for the payment and delivery of the same, or an equivalent, at any other place whatsoever; to buy, sell, and dispose of gold and silver coin and bullion, gold-dust, money, and securities for money, and to do a general exchange and collection business; and to invest surplus or unemployed funds in bonds or notes, secured by mortgage on real estate, stocks of the government of the United States, of any of the United States, or otherwise, as the board of directors may designate.'

The bill alleges that this plaintiff has been in the express business in Oregon, Washington, Idaho, Montana, and places to the eastward thereof, for many years; that the defendant is furnishing express facilities to the plaintiff over its road from Kalama northward, and from Wallula junction eastward to Missoula; but that it has refused, and still refuses, to furnish express facilities over its road to the plaintiff from Portland to Kalama, and from Missoula eastward. The answer of the defendant substantially admits the facts upon which the plaintiff grounds its right; that is, the incorporation of the plaintiff, its express business, the ownership and operation of the Northern Pacific Railway and its branch lines by the defendant, and the refusal on the part of the defendant to furnish express facilities to the plaintiff within or between the points named. But, as a defense or reason for this refusal, the defendant sets up several matters; and, first, it says plaintiff is a banking corporation, and by section 1924 of the Revised Statutes it is prohibited from doing business in Washington Territory, and therefore, as an express company, cannot come into that territory; nor can it rightfully or lawfully demand any privileges or facilities or conveniences from the defendant over its railway lines within that territory. Section 1924, of the Revised Statutes referred to, is section 6 of the act of March 2, 1853, (10 St. 172,) organizing the territory of Washington, and it provides:

'The legislative assembly of Washington shall have no power to incorporate a bank, or any institution, with banking powers, or to borrow money in the name of the territory, or to pledge the faith of the people of the same for any loan whatever, directly or indirectly. No charter, granting any privileges of making, issuing, or putting into circulation any notes or bills in the likeness of bank-notes, or any bonds, scrip, drafts, bills of exchange, or obligations, or granting banking powers or privileges, shall be passed by the legislative assembly; nor shall the establishment of any branch or agency of any such corporation, derived from other authority, be allowed in the territory; nor shall the legislative assembly authorize the issue of any obligation, scrip, or evidence of debt, by the territory, in any mode or manner whatever, except certificates for service to the territory.'

In Rapalje & L. Law Dict., under the word 'Bank,' occurs this definition of a bank:

'(1) A place for the deposit of money. (2) An association or corporation whose business it is to receive money on deposit, cash checks or drafts, discount commercial paper, make loans, and issue promissory notes payable to bearer, called 'bank-notes.' (3) The building, apartment, or office where such business is transacted. Banks are of three kinds: banks of deposit, which include savings banks, and all others which receive money on deposit; banks of discount, being those which loan money on collateral or by means of discounts of commercial paper; and banks of circulation, which issue bank-notes payable to bearer. But the same bank generally performs all these several operations.'

Now, I think it is too plain for argument that the plaintiff is not a bank or a banking corporation in any of these senses; though it is undoubtedly true that it possesses some of the powers or facilities which may be used by a bank, and are commonly used by banks in the transaction of business; still, banking is not the object of its incorporation. The object of its incorporation is the transportation of packages, including money, from place to place; and, so far as money is concerned, this is also done at this day by telegraph, bills of exchange, drafts, and otherwise. It may be very convenient and very proper for Wells, Fargo & Co. to receive $1,000 in gold to be transmitted to New York, and to do so by giving a draft on New York, or by making a telegraphic transfer, and then transporting the coin to New York at its convenience, or keeping it here, if that should be more convenient, for the time being. I do not think I can better dispose of this objection than in the language of Mr. Justice GREENE, in the able and exhaustive opinion (1884) delivered by him in the case between these same parties in Washington Territory. He says:

'It has been stated in argument that plaintiff is doing a purely banking business at different points in the United States, notably at San Francisco and New York city. Possibly, it may be doing what is beyond its lawful powers. The prime object of its pursuit, according to its charter, is not banking, nor the doing of those things wherein banks and bankers are principally or peculiarly engaged, but the reception, transmission, and delivery of parcels and values, and executing other commissions. For a person whose proper vocation is not that of a banker to do for himself, solely in furtherance of his own particular vocation, the things that a banker does, is not 'banking,' nor is it, as it seems to me, the exercise of 'banking powers.' If plaintiff, under its charter, does things that banks do, it does them as ancillary to its main business, just as a merchant incidentally, in his own behalf, in his mercantile transactions, may do every one of those things which plaintiff is empowered to do, and yet do them without being in name or fact an expressman or a banker. Not for the purpose of doing a banking business in any phase, but 'for the purpose of facilitating exchange between the several places at which said corporation may transact business,' are the particular powers of plaintiff given.

'For the safe and convenient transmission of value, and for no other purpose, a token of value is taken from a sender at one place, and a corresponding token is produced to a recipient at another place. It is all the same as if a parcel of goods to be sent were received at one end of a line of transportation, and a like or equivalent parcel were, by consent or stipulation of the shipper, to be delivered at the other end. A business consisting of such details is not 'banking,' nor are powers limited to carrying it on 'banking powers.' In one department or another of banking the receiving of deposits, or the buying and selling of gold and silver and mercantile paper and securities, or the drawing, paying, and collecting mercantile paper, is the principal thing, and the exchange of values between localities, thereby sometimes effected, is subsidiary or accidental; but in this part of the express business the principal thing is the transfer of value from place to place, and the buying, selling, drawing, paying, collecting, depositing, and receiving are all accessory. Every milling, or mining, or other productive corporation, has to do some or all of these things for the convenience of itself in its own business, to a greater or less extent, and if it could not, would be cramped almost or quite to death. Between such a corporation and plaintiff there is a

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