SOUTHERN EXPRESS CO. V. MElMPHIS, ETC., B. CO.
a Nebraska corporation, in respect to all its transactions within thii state; and the agents of the company, conduoting its. business in Nebraska, are the agents of the Nebraska corporation, otherwise the statute could have DO effect whatever. If the officers and agents of this corporation, engaged in the transaction of its business in Ne..: braska., are to be regarded as the officers and agents of the Iowa corporation, it follows. that the statute has made it a Nebraska corporation.in name only, and not in fact or in law. The same natural persons may constitute two or more distinct corporations. A corporation in Nebraska must exist by virtue of the law of this state, and if that law constitutes the defendant a Nebraska corporation, it matters not that the law of Iowa also constitutes it a oorporation of that state. It is the right of each state, in which a oorporation transacts busipells, to require it· to become a corporation under and by yirtue of its own laws. This right having been exercised by the ·state of Nebraska, in a statute plainly applicable to . defendant, we must a domestic corporation, and not a foreign corporation, subjec5 to the jurisdiction of this court. Judgment for defendant upon the plea in abatement.
(Oircuit Oourt, E. D· ..irkansa8. July, 1881.)
R&ILROADS-RIGHTS OF EXPRESS COMPANIEs-INJUNCTION.
A temporary injunction granted, to enjoin a railroad company from charging a certain express company higher rates than were charged to othvr specified companies by the same railroad.
The complainant, an express company, haa been for many years engaged in carrying on an express business over the respondent's railroad. No written contract·was ever entered into between the parties; but the business was carried on without objection, and upon terms mutually satisfactory, until some time in the year 1880, when the railroad company asserted its own right to transact all the express business upon its line, and attempted to eject the complainant therefrom. Upon the application of complainant, and upon the allegations contained in his original bill, a temporary injunction was, on the twenty-first of June,.1880, granted by the district judge, restraining the respondent from interfering with the complainant, etc., and from
preventing the complainant from carrying on the express busin'ess over said road, and from enjoying the same facilities in the conduct of such business permitted to any other express company, or exercised by the respondent itself, on payment by complainant of reasonable compensation therefor, On the twelfth of May, 1881, the complainant filed a supplemental bill, by which it is alleged that respondent has engaged in the express business over the said line of railroad, and established express offices, agents, wagons, horses, etc,; that the complainant has also continued in such business, It. is further averred that since the granting of the injunction herein the respondent has "continUOUSly resorted to unlawful, unjust, arbitrary, and unreasonable expedients to circumvent the force and effect of the orders and decrees of this'court on his original bill, as aforesaid, and by imposition upon the plaintiff of unlawful, unreasonable, unjust, and discriminating terms, conditions, and restrictions not imposed upon itself, engaged in the express business, to destroy the plaintiff's business and competition on the defendant road, and to accomplish indirectly that exclusion forbidden by the orders of this court in this cause," The supplemental bill sets forth in detail the terms and restrictions imposed upon the complainant, the principal of which is that the complainant is charged unjust and extortionate rates for the transportation of express matter. The prayer of the supplemental bill is that the injunction granted under the original bill may be modified so as to restrain the respondent from charging complainant upon its bags, safes, packing trunks, chests, and boxes a higher rate than upon other freights of like weight and bulk, and from charging complainant upon other freights a higher rate than it charges for similar express matter received from or delivered to the custody of the Iron Mountain, etc., Railroad Company Express, or the Pacific Express Company. Also from discriminating against the complainant in favor of itself, or any other· express company or person, in the matter of rates, etc. Upon the presentation of the supplemental bill, the respondent moved to dissolve the injunction allowed upon the original bill, and the complainant moved for a modification of the injunction as prayed in the supplemental bill, and both motions were, by consent, set down for hearing before the circuit judge at St. Louis, on Saturday, the fourth day of June, 1881, and were then fully argued by counsel . before him.
.00. V. MEMPHIS,
F. E. Whitefield and Glover rX Shepley, for complainant. B. C. BrownrX J. O. Broadhead, for respondent. MCCRARY, C. J., delivered the opinion of the court: 1. I will consider first the motion to dissolve the injunction. This is urged upon two grounds, to-wit: (1) That the railroad company is, by its charter, possessed of the exclusive privilege of conducting the express business over and upon its own road; and (2) that even if this were not so, the express company has no right to carry on its business upon said road without the consent of the railroad company. Does the charter of the respondent railroad company confer upon it the exclusive right to carryon the express business upon its own road ? The answer to this question depends upon the construction of the sixth section of said charter, which provides as follows: .
.. The said company shall have the exclusive right of transportation or conveyance of persons, goods, merchandise, or produce over said railroad by them to be constructed."
This language must be construed in the light of the history of the of railroads in this· country. When first introduced they were regarded only as improved highways, subject to be used by the general public. It was thought that any person ought to have the right to place his vehicle upon the track of a railroad, and to transport his own freight upon it, paying toll for the use of the track, and it was considered necessary, in order to limit the use of the road and to give a particular person or company the exclusive right to operate it, that such exclusive right should be expressly reserved by law. It was for this purpose that clauses substantially like the one above quoted were inserted in very many of the earlier, and not a few of the later, railroad charters. Experience very soon demonstrated that it was not practicable to apply to the system of railways all the principles that obtained in defining and regulating the rights of the public with respect to the common highway. Certain innovations were necessary; certain exclusive privileges were inevitable in order to secure safety and celerity in the transportation of persons and property by the use of cars and steam-engines. One of the first of these to be generally recognized was the necessity that the operation of every railroad should be under the control of a single head. It was seen that the safety, not only of property, but of life as well, depended upon vesting in· the owner of the track, or the company operating the road, the exclusive right to say what vehicles should be placed upon the track, or, in other words, the exclusive right of transv.S,no.11-51
portation and conveyance of persons and property over their tracks. An examination of thenilroadchartersadopted by the various legislatures of the UnionwiUshow th-a.ttl:1is,ptovision hat:! been inserted in nearly all of them in one form or another. It was never intended to apply to or determine such '8i question 3S that now under consideration. It gives thecrailroadcompany the exclusive right to place carson the and operate them fodhe transportatioD. of persons, goods"wares, and merchandise. ,]t gives no other or greater exclusive right. ,It follows that the question whether the railroad company has the exclusive right to carryon tlie,express. business upon its line, 'alldthelright to eject the eemplainanti, must be determined pem:ehtly of this provision. This brings us to the question whether the express company may, 'asama.ttet!of right, carry on 'its business upon the respondent's road. Substa.ntially, this question has recently };leen considered by several of the COul'tsofthe United States, and it has been uniformly held that it is the duty of the courts to maintain such right by granting a preliminary injunction,atleast, until there aflnal hearing upon .the merits. Such has been the ruling afM,r. Justice Harlan; on the cirQuit i ,-of' Judge Baxter, of the sh.th bil'cuit; and of District Judges' -Key,: Gresham, Treat, Hallett, and Caldwell. I amol the opinion' these decisions are sound in principle, as well as of great weight asautlhority. They will be followed, unless the supreme, court shall otherwise-decide. The guiding principles running through them aUt and which should govern in determining respective rights of the paTties;, al:ethesa :
,(1) Arailroad company is a qua.,.,i,ppWGcorporation, and bound by the law regulatingthe powers and duties of.s<,>trimon of PElrsons and property. (2) It is the duty of such a company,as a Pllblic servant, to receive and carry goods for all persons alike, withotit :injurious discrimination as to rates or terms.; . . (3)Thebustness of expressage has grown into a public necessity. It is the means whereby articles of great value may carried, over long distances with certainty, safety. and celerity, placed in the. hands of a special messenger, who is to have the charge arid care of them ,en route. The railroad companies must, in common with the public, recognize the necessity for this mode of transportation, and must carry express packages, and the messenger in charge of them, for all express companies that apply', on the same terms, unless excuseGi by the fact that so many apply-that is impossible to accommodate all ,-a state of things not likely to occur. If it be said that this is giving to the express companies privileges not afforded to other shippers, the answer is that the nature of the express business makes· special facilities for 'its transaction necessary, and the case is, therefore, properly exceptional. (4) It is not necessary now to determine whether tlie respondent railroad
company may, its charter, the express b;usiness, and undertake to carry and deliver express packages beyond its line. It is enough fOt the present to say that if it poss-esses the right to engage in at all, it must'do so upon terms of perfect equality with all express companies, and the court will see that it 'does not take to itself any privileges in :,'" this regard that it does not extend to.the complainant.
. The motion to disolve tlle injundtion is overruled.' '.,' 2. What has been said virtually disposes of the questIons raised by' company is bOllnd to carry for the supplemental bill. The the express company for a rea.sonable compensation, and not a discriminate against it. A cot'1rt of chancery has power to cOIn'pliance with this wholesome regulation. This court canribt fora moment sanction the proposition that the railroaa:company by extortion or unjust discrimination, exclude the express comj;lany from the right to conduct its business upon their railroad. I am not prepared now to fix the 'tnaximumrates to be charged for the transportation of express matter, but I hay-e no doubt of ,the power' after investigation, to do so. An order for this purpose shotild not, as a rule, be made until after a: reference to a master, and a repqrt by him after hearing. For the present, the injunction hereinbefore allowed will be modified so as to enjoin and restrain the respondent from charging the complainant for the transportation of express matter, closed packages, more than a fair and reasonable rate; such charges in no case to exceed the rate charged upon similar express matter to itself, or to any other express company, or for similar express matter received from, or delivered to, the Iron Mountain, etc., Railroad Company Express, or the Pacific Express Company. Ordered accordingly.
and others v.
(Circuit Court, D. Iowa.
Where a vendee is insolvent at the time a purchase is made, and does not expect to be able to pay for the goods purchased, the vendor Is entitled to possession as against such a vendee's voluntary assignee.
An action of replevin is brought to recover the possession of goocls alleged to have been fraudulently purchased by Harter & Claus, defendant's assignors. The plaintiffs rescind the sale, and follow the goods, stating in their petition "that when Harter & Claus purchased