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involve the Government in liability for injuries resulting
GEORGE W. WICKERSHAM.
TRANSPORTATION OF LETTERS OUTSIDE THE MAIL.
The Erie Railroad Co. has the right under section 184 of the Penal
Code (35 Stat. 1124) to transport over its lines, otherwise than in the mail, letters written by the secretary of the Erie Employees' Relief Association, an organization composed of officers and employees of that railroad, to the railroad company, but can not transport letters written by the officers of said relief association to its members.
DEPARTMENT OF JUSTICE,
May 23, 1912. Sir: I have the honor to acknowledge the receipt of your letter of May 16, 1912, requesting an opinion upon the following question:
“ Whether the Erie Railroad Co. has the right under section 184 of the Penal Code (35 Stat. 1124) to transport over its lines, otherwise than in the mail, letters written by the secretary of the Erie Employees' Relief Associa
tion, an organization composed of officers and employees of that railroad."
Section 184 of the Penal Code and its predecessor, section 3985, Revised Statutes, have been construed from the point of view of this question by the opinion of Mr. Attorney General Harmon (21 Op. 394), and by my opinion of December 20, 1910 (28 Op. 537); and in these opinions it is fully shown that Congress has imposed two conditions upon the free transportation of letters outside the mail: First, that the letters should be the letters of the carrier itself; and second, that they should relate to its own current business. The concurrence of both these conditions is essential to the privilege.
Upon these principles it is apparent that the privilege of free transportation outside the mail does not extend to such of the letters referred to in your question as are not only written by the secretary of the relief association, but addressed to its members, because such letters being neither written by nor addressed to the carrier, are not communications of the carrier itself.
The constitution and by-laws of the Erie Employees? Relief Association show that the association is not a department of the railroad company, but a separate and independent organization, governed by directors of its own, having its own secretary, chosen by its directors, having its own funds and property wholly separate from those of the railroad, and having obligations and liabilities not attached upon the railroad. This being so, it is not material that the purpose of the association and the subject of its communications is a pension system for the carrier's employees, and so a matter of interest to it, for the law excepts only the communications of the carrier itself. In this regard the relief association stands in exactly the same case with the class of companies referred to by Mr. Attorney General Harmon in his opinion above cited, such as separate companies operating car lines, railroad hotels, or railroad restaurants; nor does it differ in principle from the case of the railroad association formed to weigh all carload shipments of the constituent
companies, which was passed upon in my opinion of December 20, 1910, above cited.
A different situation is presented by such of the letters referred to in your question as are addressed by the association to the railroad company (or its officers and employees as representing the railroad company) concerning relations between the railroad company and the association. These communications fall within both of the conditions imposed by Congress, because being addressed to the carrier itself, they are its communications within the intention of the statute, as shown by the opinions cited, and being on the subject of the carrier's own relation to the relief association, they relate to the carrier's current business.
I am of opinion therefore, as above stated, that in so far as the letters referred to in your question are written by officers of the relief association to its members, they are not within the exception authorized by Congress; but that in so far as the letters are addressed to the railroad company (or its officers or employees as representing it) they are within the exception authorized by Congress and may be carried free outside the mail. Very respectfully,
GEORGE W. WICKERSHAM. THE POSTMASTER GENERAL.
POSTAL SAVINGS SYSTEM- PRIVATE BANKS IN INDIANA.
Private banks in Indiana under the legislation of 1907 may become
depositories of postal savings funds under section 9 of the act of June 25, 1910 (36 Stat. 816), as construed in the opinion of March 12, 1912 (29 Op. 36
DEPARTMENT OF JUSTICE,
May 24, 1912. Sir: I have the honor to acknowledge the receipt of your letter of the 11th instant, in which, alluding to my opinion of March 12, 1912 (29 Op. 368), you ask whether, in the proper application of said opinion, a private bank in Indiana which has complied with the State laws regulating
such banks is eligible to qualify as a depository for postal savings funds under the provisions of section 9 of the postal savings act of June 25, 1910 (36 Stat. 816).
Section 9 of said act provides, in part, “ that postal savings funds received under the provisions of this act shall be deposited in solvent banks, whether organized under national or State laws, being subject to national or State supervision and examination," and in the opinion referred to I held that “ a bank“ organized under national or State laws 'within the meaning of the postal savings act must be a bank which is the creature of statute law” and “ should be incorporated or clothed with the essential attributes of a corporation by virtue of legislative sanction."
The law of Indiana at present regulating the business of private banking is the act of 1907. (Burns' Annotated Indiana Statutes of 1908, secs. 3402–3417.) Previously the law governing the subject was the act of 1905. (Burns? Annotated Indiana Statutes of 1905, secs. 2994a-2994j.) This latter act provided that every partnership, firm, or individual transacting a banking business within the State should be subject to the provisions of the act. In general, this act merely regulated such business, providing the amount and character of the assets, that they should be paid in, that the names of the owners and the amount of their ownership should be made public, and that the depositors should have a lien on the assets of the bank. But, by section 2994d it was provided that, on compliance with certain conditions, “ the State auditor shall
issue to such partnership, firm, or individual a certificate * * * authorizing such partnership, firm, or individual to transact a banking business,” and, by section 2994j, that “ any bank organized and doing business under the provisions of this act shall have the right to sue and be sued under the name under which such bank is authorized to transact its business,” such name already having been provided for ky section 2994c, paragraph 1. It may be doubtful how far banks coming within the operation of this act of 1905 could be said to be “ clothed with the essential attributes of a corporation by virtue of legislative sanction” within
the intent of my former opinion, because the act itself has provisions looking both ways. It might be claimed that these banks are really the creatures, not of the statute, but of the common-law right of the individual to engage in banking as in any other business, regulated, where there is a partnership, by the partnership agreement, which is referred to in section 2994c, paragraph 2, as the instrument under which the business is to be conducted, and that the statutes merely added certain minor attributes of a corporation for the purposes of convenience. Individual liability, in solido, of the individual banker or bankers is clearly contemplated (sec. 2994c, par. 5; sec. 2994i), and, in spite of section 2994f, it seems that an assignment of a share of an individual partner would work a dissolution (Needham v. I'right, 140 Ind. 190; Rand, Rec., v. Wright, 141 Ind. 226, which decisions, however, were not dealing with the act of 1905). In State v. Richcreek, 167 Ind. 217, 221, the Supreme Court, construing the act of 1905, said:
“ The right of banking, in all its departments, at common law belonged to the individual citizen, to be exercised at pleasure. It is conceded by counsel, and it is unquestionably settled, that the sovereign authority of the State may regulate and restrain the exercise of such right.”
This language seems to imply that, under the act of 1905, private banks in Indiana were the creatures of the commonlaw right to carry on banking under any agreement which to the parties seemed good, subject only to the right of the State to regulate the business, a right exercised by the act of 1905.
The act of 1907, however, while reenacting the provisions referred to above, of the act of 1905, which seem to make private banks in certain respects the creatures of the legislature, goes considerably further. It confers on private banks the right (and, indeed, makes it their duty), to take title to real estate in their own names, and to dispose of the same in that way (sec. 3403). It provides that the “
capital stock ” of the bank may be increased or diminished on agreement or petition of its “ partners or shareholders holding two-thirds of its capital stock” (ibid). The state