Wells v. Oregon Ry. & Nav. Co.

• Decision Date: 19 March 1883
• Parties: WELLS and others v. OREGON RY. & N. CO. SAME v. OREGON & C. RY. CO.
• Court: U.S. District Court — District of Oregon

15 F. 561

WELLS and others v. OREGON RY. & N. CO.

SAME v. OREGON & C. RY. CO.

United States Circuit Court, D. Oregon.

March 19, 1883

Clarence A. Seward, M. W. Fechheimer, and J. R. Lewis, for plaintiffs.

Joseph N. Dolph and J. F. McNaught, for defendants.

DEADY J.

These suits were commenced on December 11, 1882, and on the same day an order was made in each requiring the defendant therein to show cause why a provisional injunction should not issue as prayed for in the bill; and also that in the mean time the defendants be so restrained. On January 25-6 the motions for provisional injunctions were heard at length-- all the questions which can or may arise in the cases being argued by counsel with much zeal and ability. Contemporaneous with those, a similar suit was commenced by the plaintiff in Washington territory against the Northern Pacific Railway Company, and by an understanding between court and counsel a motion for an injunction was heard in that case at the same time with the Oregon cases-- Mr. Chief Justice GREENE of that territory, in whose court the case is pending, being present 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, including the country traversed by the lines of the defendants' railways steam-boats, and steam-ships in Oregon, Washington, Idaho California, and British Columbia; and has been such corporation and so engaged since February 5, 1866, when it succeeded to the express business carried on by Henry Wells William G. Fargo, and four others, between New York and San Francisco, and elsewhere on the Pacific cost, since March, 1852.

The defendants, the Oregon Railway & Navigation Company and the Oregon & California Railway Company, are corporations formed under the laws of Oregon, with their principal places of business in Portland, and engaged in the business of a common carrier of freight and passengers; and as such corporation the former owns and operates certain lines of railways, steam-boats, and steam-ships in Oregon, Washington, 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 furnished by the defendants with all the necessary facilities for doing its express business over and upon their said lines of transportation, for which it has paid them a stipulated price, but that now the defendants refuse to furnish such facilities any longer, and have notified the plaintiff that hereafter they intend to do the express business on their lines of transportation themselves; and that such refusal would work an irremedial injury to the plaintiff.

The defendants filed exceptions to the bills for impertinence, which were heard and submitted at the same time with the motions for the injunctions. They are numerous, and include a large portion of the allegations contained in the bills, such as (1) matters which the court can judicially know; (2) the extent, value, and importance of the express business in the United States, and the circumstances under which it has grown up and been transacted; (3) the usage and past conduct of railway companies in relation to the same; (4) the citation and quotation of acts of congress concerning or recognizing the express business; and (5) the averments concerning prior injunctions allowed by the courts in similar cases.

An allegation will not be expunged from a bill as impertinent unless its impertinence clearly appears; for if it is erroneously struck out the error is irremedial. Story, Eq. Pr. Sec. 267.

Consistently with this rule I do not think these exceptions ought to be allowed. It may be material to a full and proper presentation of the plaintiff's case to allege the existence of facts within the judicial knowledge of the court, and, if so, they are pertinent thereto. The fact that they may be proved by reference to the judicial knowledge does not dispense with the averment of them, or render such averment impertinent. So, in regard to the allegations concerning the business in which the plaintiff is engaged and is seeking by this means to protect, the facts concerning its origin, growth, value, importance, and relation to the public and transportation companies, such as the defendants, may all be material to a proper understanding of the plaintiffs' case, and, if so, they may be stated with reasonable fullness in the bill. And this rule is more especially applicable to cases like these, which, although not exactly of first impression, involve the application of established rules and principles to new and important instances arising out of comparatively recent 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.

Concerning the injunctions alleged to have been recently allowed 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-ordinate 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 which the plaintiff is a party, commonly are, in suits for infringement of patents. Curt. Eq. Prec. 30; Curt. Law of Pat. 544.

In answer to the applications for the injunctions the defendants filed the affidavits of their respective managers; but neither of these contradict or qualify the facts here stated, except in one particular. The affidavit of the manager of the Oregon & California Railway Company denies that the plaintiff has been notified that it would no longer be allowed express facilities on its lines of railway, but, on the contrary, avers that the plaintiff has a contract with said defendant for said facilities until November 1, 1883, as far south as Roseburg, but not over the extension being constructed to the southern boundary of the state, and then completed to Riddle's station, some 26 miles south of Roseburg. But it appears from the affidavit of the president of the plaintiff that he was informed by the president of the Northern Pacific Railway Company, and both the defendant corporations, in November, 1882, that the notice to the plaintiff from the Oregon Railway & Navigation Company, to the effect that it would not be allowed express facilities on its lines of transportation after December 31, 1882, except upon the steam-ships running between Portland and San Francisco, would lead to the same result in the case of the Oregon & California Railway Company, and that his board had determined to conduct the express business on the lines of the Northern Pacific Railway Company and those of the defendants for themselves.

Upon the facts, then, I think it may be concluded that the defendants intend and will, unless restrained therefrom, withdraw from the plaintiff on their lines of transportation all the express facilities heretofore afforded it, for the small portions of such lines which may not be included in that purpose at present would be of no benefit to the plaintiff if excluded from the remainder.

But, upon the case made by the bills, counsel for the defendants object to the allowance of the injunctions, because (1) it does not appear that the plaintiff is a corporation or has capacity to sue; (2) the statement as to the facilities heretofore afforded the plaintiff, and which will hereafter be required for the transaction of its business, is insufficient; (3) the defendants cannot be required, under their articles of incorporation and the laws of the state, to afford the plaintiff the facilities demanded, or to give it a preference over other shippers in the transportation of freight; (4) if the plaintiff is entitled to a continuance of the facilities heretofore afforded it over existing lines, it is not as to future extensions of such lines; and (5) the court has no power to determine the compensation to be paid by the plaintiff to the defendants for express facilities.

It is admitted that the plaintiff was, on February 5, 1866, duly incorporated, by an act of the legislature of Colorado of that date, as 'The Holladay Overland Mail & Express Company,' but it claimed that the subsequent attempt--November 12, 1866-- to change its name to 'Wells, Fargo & Company' failed of its purpose, and therefore there is no corporation of that name.

It appears that section 11 of the act incorporating the Holladay Overland Mail & Express Company contained a provision that 'said company may change its name whenever the same shall be ordered by the vote of a majority of the board of directors thereof, at a meeting duly convened for that purpose: provided, such change is approved also by a majority of the stockholders in interest at a meeting duly convened for that purpose by a call from the president of the company.'

The bill allege that 'on November 12, 1866, and pursuant to the power conferred by section 11 of said act of incorporation, the stockholders of the said 'Holladay Overland Mail & Express Company' duly changed its said corporate name to the name of 'Wells, Fargo &amp Company;' and such change was duly approved by an act of the legislature of Colorado, passed January 26, 1872. ' The argument for the defendant upon this point is that a stockholders' meeting could not change the name of the corporation, because the act provided that the change should take place by the act of the directors, with the approval of the stockholders. In support of this construction of the...