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 in engaged, and is seeking by this means to protectthe facts concerning its origin, growth, value, importance and relation to the public and transportation company, such as the defendants, may all be material to a proper understanding of the plaintiff's 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 U. S. 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.

L. 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 nor qualify the facts here stated except in one particular. The affidavit of the manager of the O. & C. Ry. Co. 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 Riddles station some twenty-six 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 N. P. Ry. Co., and both the defendant corporations in November, 1882, that the notice to the plaintiff from the O. R. & N. Co. to the effect that it would not be allowed express facilities on its lines of transportation after December 31, 1882, except upon the steamships running between Portland and San Francisco, would lead to the same result in the case of the O. & C. Ry. Co., and that his board had determined to conduct the express business on the lines of the N. P. Ry. Co., 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, 1876, duly incorporated by an act of the legislature of Colorado of that date as "The Holladay Overland Mail and Express Co.," but it is claimed that the subsequent attempt-November 12, 1866-to change its name to "Wells, Fargo & Co.," failed of its purpose, and therefore there is no corporation of that name.

It appears that sec. 11 of the act incorporating the H. O. M. & E. Co., 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 bills allege that "on November 12, 1866, and pursuant to the power conferred by sec. 11 of said act of incorporation, the stockholders of the said 'Holladay Overland Mail & Express Co.' duly changed its said corporate name to the name of Wells, Fargo & Co.;' 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 stockholder's 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 act counsel cites Wallamet Falls Co. v. Kittridge, 5 Saw. 48, in which case, this court held that under sec. 19 of the Oregon corporation act (Or. Laws, 528), which provides that a meeting of the stockholders of a corporation may "authorize the dissolution" thereof, that such vote did

not dissolve the corporation but only empowered the directors, by whom all the powers of the corporation were exercised unless otherwise specially provided (Or. Laws, 526, sec. 9), to take the necessary steps for its dissolution and winding up of its affairs.

But the cases so far from being parallel, are just the reverse. The Colorado act gave the preliminary action in the matter to the directors and the final effective action to the stockholders, while the Oregon act gives the initiative to the stockholders and the actual determination of the question to the directors.

My impression is that upon the facts stated the name of the corporation was duly changed.

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And first, it is alleged to have been done by the stockholders pursuant to the power conferred" on them by the act authoriz ing the change, that is, according to it, and to have been "duly" done by them, that is, according to law. Upon these allegations, and until the contrary appears, I think it ought to be presumed that the action of the stockholders was taken after the preliminary order of the directors rather than without it.

And second, taking into consideration the whole provision on the subject of changing the name and the reason of it, the act ought to be construed as practically giving the power to make the change to the stockholders absolutely, with or without the preliminary order of the directors. The latter are not authorized to change the name but to make an order that it may be done by the company," and then comes the proviso and gives the final power over the subject to the "stockholders." The directors are the mere agents of the stockholders and the clause giving them authority to order the change becomes a mere regulation of convenience concerning the method and order in which the thing is to be done and not the essence of it. It is, therefore, merely directory. Sprigg v. Stump, 7 Saw. 286 and cases there cited.

In Rex v. Loxdale, 1 Burr, 447, Lord Mansfield said: "There is a known distinction between the circumstances which are of the essence of a thing required to be done by an act of Parliament, and clauses merely directory."

It is not necessary, therefore, to consider what was the effect of the act of January 26, 1872, purporting to legalize the alleged change of name. For the defendants, it is contended that the act is invalid as being in conflict with sec. 1 of the act of March 2, 1867 (14 Stat. 426, sec. 1889 R. S.) forbidding the legislature of a territory "to grant private charters or special privileges," but permitting it to provide for the formation of corporations by "general corporation acts."

This argument assumes that a legislative act naming or changing the name of a corporation is so far an act authorizing the formation of a corporation-a calling it into existence or conferring upon it a special privilege, and Newby v. The Or. Cen.

Ry. Co. (1 Deady, 616) is cited as showing that "the corporate name is a necessary element of the corporation's existence" without which "a corporation cannot exist."

But this remark must be considered as made with reference to a corporation formed under the corporation act of Oregon, sec. 4 of which (Or. Laws, 525) expressly provides that the articles of incorporation "shall specify the name assumed by the corporation and by which it shall be known."

And yet the law might provide that A. B. and C. should constitute or be formed into a corporation for any lawful purpose without any special name or designation. From the necessity of the case it would have to be described rather than named, as A. B. and C., a corporation duly created or formed at a certain date for a certain purpose, and in time it might acquire the name of the "A. B. and C." railway, or steamboat company, as the case might be.

I doubt, then, if sec. 1889 of the R. S. does prohibit a territorial legislature from naming or changing the name of an existing corporation, because such act is not a "charter" creating a corporation or one conferring a "special privilege" within the meaning of the section. To name a corporation is not to create it any more than a person. Nor does it confer on it a special privilege. The privilege of having a name is not thereby monopolized or exhausted, but may be enjoyed by every corporation that has wit enough to devise one, upon the same terms. See Southern Pacific Ry. Co. v. Orton, 6 Saw. 185.

But the attempt to legalize the change of name may be said to be an admission of its invalidity. Yet it must be considered that the matter of the change is lumped in the legalizing act with changes in the capital stock and other "acts and proceedings of the corporation," and therefore the validation of the change of name may have had very little to do with the passage of the act. And this suggestion gets force from the recital in the preamble to the act, to the effect that the name had been changed to Wells, Fargo & Co. by "the board of directors and stockholders."

As to the insufficiency of the statement of the facilities allowed the plaintiff on the defendants' lines, and which will hereafter be required thereon for the transaction of its business, my impression is that the bills are probably explicit enough, though I think they might well have been made more so.

But "express facilities" is a term which, from the nature of things, must by this time be pretty well understood between the parties most interested-the express company and the railway

company.

As interpreted by the customs and usages of these parties, and sanctioned and adopted by the decisions of the courts, these facilities may be said to include the right to enter depots and stations

with loaded and empty wagons, the use of the platforms and space for the loading and unloading of express freight, sufficient space in suitable cars drawn in passenger or quick trains for the transportation of such freight, and a messenger in charge thereof, with room for its assortment while in transit, and a sufficient delay at stations for the delivery and receipt of express matter. Southern Express Co. v. Iron, etc., Ry. Co., 10 Fed. Rep. 213, 869; Southern Express Co. v. Memphis, etc., Ry. Co., 2 Am. & Eng. R. R. Cas. 639. "Express facilities," from the nature of the business cannot be limited to a definite space, but must correspond in this and other particulars to the public want and convenience to which the express company ministers.

In these cases there can be no difficulty for the present in ascertaining the facilities required by the plaintiff. For the purposes of this application they are such as it has heretofore been allowed. Under the restraining orders allowed on the filing of the bills, the defendants are now furnishing and the plaintiff is receiving just such facilities without any inconvenience to either party.

But the third objection, that the defendants cannot be required, under their charter and the laws of the State, to afford the plaintiff the facilities demanded, or to give it a preference over shippers in the transportation of freight, is the one principally relied on by the defendants to defeat these applications for injunctions.

Upon this point the arguments and brief of counsel for defendants have left nothing unsaid in their behalf.

Briefly, the argument is this: At common law, while a common carrier must carry for all at a reasonable compensation, which must be settled by the courts if not agreed on by the parties, still he may discriminate in his charges by carrying, in some instances, for less than a reasonable compensation if he chooses. There is no statute in Oregon changing this rule of the common law, or requiring a corporation to transport freight in a passenger train and in the custody or under the control of the shipper, therefore the defendants cannot be required to carry freight for the plaintiff at the same rate they may for others, or to furnish it any such facilities. In short, it is denied that either under the laws of Oregon or the past dealings between the parties, "it is the duty of the defendants to permit an express business to be done over their lines of transportation at all in the manner required by the plaintiff," and, therefore, they may refuse to do so if they please.

In passing upon this question, at this preliminary stage of these cases, I do not deem it necessary to do more than to state my impression of the law as applicable thereto.

In the case of the Southern Express Co. v. St. Louis, etc., Ry. Co.; Same v. Memphis, etc., Ry. Co.; Dinsmore v. Missouri, etc., Ry. Co.; Same v. Atchison, etc., Ry. Co., Same v. Denver, etc.,