BRYANT V. WESTERN UNION TEL. CO.
825
the administrator and heirs of the estate. On demand being made for a further installment in June, 1881, the administrator wrote the mortgagee that the heirs were in possession of their interests. In March, 1882, after due notice, and in accordance with the statutes of Canada, the mortgagee caused the property to be sold under a power of sale contained in the mortgage. Upon such sale the property realized but $2,100. This bill was filed in July, 1883. As the mortgage contained a personal covenant of the mortgagor to pay, the debt might undoubtedly have been proven against his estate. Yet the custom is to look to the land as the primary fund, and to resort to the personal responsibility of the mortgagor only in case of a deficiency after a sale of the premises. Indeed, under our statute, it is by no means certain that if the mortgagee had sought to prove her debt, the court would not have required her to exhaust her remedy against the land. Clark v. Davis, 32 Mich. 154, 159. But whether the common-law rule, which treats the personal estate as the primary fund for the satisfaction of debts, be changed by statute or not, it seems to me that complainant is not chargeable with laches in delaying this suit until a sale was had and the amount of the deficiency was ascertained. The demurrer must be overruled.
BRYANT and another v. WESTERN UNION TEL. Co. (Circuit Court, D. Kentucky. GSAI'" "TICKER" A "Dr.:CKET-SJlOP."
:\Iuj' 2, 1883.)
OF TELEGRAPH CmfPANY TO
The complainants were dealers in grain and produce. They never bought or sold for present delivery, but always (lealt in futures and upon margins. "'henever the require,l margin was placed in their hands, they would buy or sell, for customers desiring them so to do, grain and produce at the last quotation of the Chicago Board of Trade. Such purchases or sales were always for tIl(' next or sueceeding month's delivery, and the (leal was taken by the complainants themselves. The customer was always required to keep his margin good, and that "ithout notice; and if, at any time before the date fixed for delivery, the market in Chicago went against the customer to the extent of his margin, the trade was closed, the eomplainants taking the margin and the customer not being heW personally liable, the extent of his loss being his margin. If, however, the market went in favor of the customer, he eould call for a settlement any time and without regard to the maturitJ' of his contraet, and he was then paid the difference between the then market price and the price at whirh he bought or sold, less a sum whieh was called by the complainants "commission," which sum was one-fourth cent per bushel of grain alleged to be bought or sold. lIeld(1) That this was gambling of a most pernicious and demoralizing species, which a court of equity would not protect by enforcing contracts or otherwise. (2) That the alleged commission was not eommission at all, but was really the odds which the customer gave the complainants in the wager on the future of the market; because the complainants always took the deal themselves, and did not pretend to buy or sell to others for the account of the customer.
820
FEDERAL REPORTER.
. (3) Complainants. being in the business of gamlJling, cquit.v will not compel a telco-raph company tn furnish to them, by means of a telegraph machine as :l "ticker," quolatlons of ruling upon the l:hicago Board of Trade, and this even thuugh complainants were mCllluers uf that uoard.
In Equity. Arthur Carey and A. P. Humphrey, for complainants. Rozel rVissellgcr, for defEmdant. BARR, J. This cause is here by removal from the Louisville chancery court, and is now submitted on the motion of the defendant to dissolve the injunction granted by the chancellor. This injunction was granted upon the ex parte motion of complainants, and cannot have the same weight with me as if granted upon notice and a hearing. The state practice seems to be to grant injunctions without notice, and almost as a matter of course, if the petition sets out sufficient prima facie grounds. The particular thing complained of by complainants is the removal of a "ticker" in theil' office, and a consequent withdrawal of the reports of the daily transactions which take place on the Chicago Board of Trade. The Chicago Board of Trade is a private corporation, and can give or withhold from the puolic its transactions. It may give these transactions to the public through such agents or upon such conditions as the board may deem advisable. 'fhe defendants, through their agents, were and are reporting the daily markets upon this board. This is done by the permission of the board, and not as a right which it has WIthout such permission. The defendants, therefore, in regard to these reports of the daily prices on the board, obey the properly expressed will of the board of trade. The duty of a telegraph company to the public in its business of telegraphing is not in this case. Neither is the qnestion of whether or not a telegraph company can go into the business of news-gathering, and, having gathered news, which is common to the public, in the selFe that all have a right to gather it, and then transmit it by nieans of its telegraph lines to some, anfl refuse it to others who are willing to pay the same rate and be governed by the same regulations as those who receive the news, before me for consideration. The relations which telegraph companies bear towards the public may be such as to prevent any discrimination in the distribution of such news. upon tbis subject I express no opinion, but it seems to be quite clear that a merchant, or a number of merchants and dealers organized into a corporation, can give to a reporter the terms of their private transactions, to be transmitted to others, upon any conditions they may choose to impose, even to the extent that these transactions shall not be transmitted to others dealing in the same goods or commodities.· These transactions on the board of trade are pri\'ate transactions, in the sense thn t the general public are not entitlecl to them, except' by the permission of the board. The directors of the board of trade, ill XO\'em bel', lSS2, made the permission to defendant to be on
nRYANT V. WESTERN UNION TEL. CO.
827
the floor of the board, and to report the current transactions of the board, conditionaL This condition was that these current reports would not be published to or for the use of any person 01" organization in the city of Chicago, or elsewhere, that would publicly post the said quotations-with a view of making transactions with other persons, based upon such quotations. 'rhe notice given defl3ndant by Mr. Randolph was not in the language just quoted, but prohibited the cieiendant furnishing, after the first of January, 1883, the current quotations of the board to those who carried on the trade or business known as "bucket-shops." If the statement of Mr. Randolph gives truly the action of the board of trade, the complainants are of the prohibited class, as the affidavits of both sides concur in stating that they "publicly post their quotations with a view of making transactions with other persons, based upon such quotations." The notice, however, names those who carryon "bucket-shops" as the persons who are not to be furnished with these market quotations; hence it is material to inquire whether complainants carryon such a business. The complainants exhibit a form of contract which they use in these trades, and insist that it is legal, and that they do a legitimate business and do not carry on a "bucket-shop." The defendant, however, insists that the form of the contract exhibited, if legal, is a cover; and com· plainants' business is really that of betting and taking bets upon the fluctuations of the market prices of grain, produce, etc., and that they do carryon what is commonly known as a "bucket-shop." There is filed with one of the affidavits a issued by complainants, explaining their business and urging the public to deal with them. From this. pamphlet and the affidavits filed by the parties I find that complainants' course of dealing is about this: The complainants never buy or sell for present delivery, but always deal in futures and upon margins. Whenever the required margin is placed in the hands of complainants, they will buy or sell, as oustomers desire, grain, etc., at the last quotation of the Chicago Board of Trade. This is always for the next or succeeding month's delivery, and the deal is taken by the complainants themselves. The customer must always keep his margin good, and that without notice, and if any time before the time fixed for the delivery the market in Chicago goes against the customer to the extent of his margin, the trade is closed anrl the complainants take the margin and the customer is not personally liable, the extent of his loss being his maJgin. If, however, the market should go in favor of the customer, &8 may call for a settlement at any time and without regard to the maturity of his contract, and he is then paid the difference between (he then market price and the price at which he bought or sold, less a sum which is called by complainants "a commission." This sum, which is one-fourth of a cent on each bushel of grain which. is alleged to be bought or sold, is not a commission, as the complainants always take the deal themselves, and do not pretend to buy 01:.
828
sell to others for the account of the customer, but is really the odds whfc"h the customer gives them in the wager on the future of the market. It is perhaps true that if the customer keeps his margin good, so that he cannot be closed out, and does not exercise his right setdifference in the prices of the grain, etc., tle upon the basis of he can demand a compliance with the contract and a delivery, but if tho of business between the complainant and their customers is to settle their alleged contract by a payment uf the differences in the market rates, ,the fact that a customer may, under certain circumstances, require an·actual delivery, does not 'relieve the complainants from the charge of carrying on a "bucket-shop." It ia the general course of a man's business which defines and classifies it. If "bucket-shop" means a place where wagers are made upon the fluctuations of the market prices of grain and other commodities, then I think the evidence shows the complainants keep such a "shop," and are of the class which defendants are prohibited from furnishing the market quotations of the Chicago Board of Trade. This is gambling, and a very pernicious and demoralizing species of gambling, which a court of equity should not protect even if the board of trade had not taken the action it has. It is true that this kind of gambling has not yet been made criminal by the statute law of the state, still if a case of wager is made out none of the state courts will enforce such contracts. Sawyer v. Taggart, etc., 14 Bush, 727. Gambling on the fluctuation in the market prices of stocks, grains, etc., is against the public policy of the state, though it may not be a crime punishable by fine or imprisonment. The complainants, in the bill which they have tendered, allege another ground for this injunction, and that is their membership of the Board of Trade of Chicago. I am inclined to the opinion that if the complainants' rights as members of the board have been violated, they must seek a remedy against that corporation, and have none against the defendant. But, if wrong in this, I do not think this ground will avail, because this record does not show that their rights as members of that board have been infringed or violated. The complainants were furnished the reports of this board by means of a "ticker" at their place of business in this city, not as members of the board of trade, but as any other person would be furnished them. The board of trade do not furnish or cause to be furnished these reports to its members, and the right to them does not in any way pertain to the membership of the board, and is entirely distinct from it. The injunction should be dissolved; and it is so ordered. Maya board of trade, or other similar association, lawfully discriminate in furnishing quotations of its ruling prices? Judge BARR, in deciding the principal case, seems to imply that it may so discriminate. "The Chicago Board of Trade," he, "is a private corporation, and can give or withhold
829
from the public its transactions. It may give these to the public through such agents or upon such conditions as the board may deem advisable." It lllay be true that that board" can give or withhold from the public its transadions," or that" it may give these transactions to the public through such agen ts or upon such conditions as the board may deem advisable;" but it is doubtful whether its right so to do results from its statns as a private corporation. Privdte corporations are not, simply because they are private corporations, exempt from performing their duties to the public in a lawful and proper mode, any more than private illliividu:tls are. For example, the law prohibits one who carries for the public from discriminating unjustly as to whom he will carry, or as to the prices he will charge for the service. This rule of law is as compulsory upon private corporations-for example, railway companies, who are common carriers-as it is upon private individuals. All are equally within its meaning. It is obvious, therefore, that the duty of the Board of Tmde of Chicago, or of any similar institution, as to disseminating its quotations of prices, cannot be determined by reference merely to its status itS a private corporation. Perhaps it will aid somewhat in determining the rule of law governing the board of trade in distributing its quotaticels of prices to examine the nature of the servJCe it performs, and to settle definitely, if possible, for whom that service is renllered. The service consists in placing within reach of almost everyone in the IHlsiness world the quotations of nrices that rule Iwon the markets of the board. By telegraphing these quotations far and wide, the board informs farmers what prices they may get for their wheat, corn, and grain, where such prices will be paid, and by whom. By the same means the board informs consumers where they may buy wheat, corn, flour, and grain; what the supply on hand is; how much must be paid for a given quantity; and who has it to sell. The boar(l stands as a middle-man between the producing and the consuming public. It serves both classes of the public by furnishing each with the information it desires. Nor is this service gratuitous. The board is paid for it in the profits which accrue to its members from their purchases from producers and their sales to consumers. moment's reliection makes clear that a service is rendered, viz., the furnishing of information, and that it is rendered for somebody, viz., for the public. 'rhere being a service performed for the public, the next question is, what rule of law the performance of that service? Unquestionably there must be some rule. else the conduct of the board in performing the service may be purdy arbitrary, and subject only to regulation by its own caprice or will. with or without rel{ard to right or wrong-a condition of things hardly to be credited. There is undoubtedly a rule. It is the same rUle that governs every service performed for the public, namely: All services which any person, natural or artificial, undertakes to render the public must be performed impartially for all, and without undue preference or unjust prejUdice towards '\IIY· In snpport of this rule see the American cases in note,1 The principal English cases are also in the note." In England and in many of the T. Railroad, 52 N. H.148; N. F..l:x. CO. Y. III. C. R.Co. 57 Me. 1'8; Bennett v. Dntton, Ii) N. H. 431; Sanford v. Railroad Co 24 Pa.St. 378; C., B. &; Q. R. Co. v. P"rks, 18111. 46'); Andenried v. P. &; R. CO.6' Pa. SI. 370; C. &; N. W. R. Co. v People,;'6 III. 365; 1\Iei'!'enger v. Penn. R CO.7 Vroom, 407; Cumberland Valley Co.'s Appeal, 62 Pa. 51. 21'; Ca mblos v. P &; R. R. Co. 4 Brew;t. 563,622; Vincent Y. C. &; A. R. Co. 49 !II. 33; Ship. per v. Penn. R. Co. 47 Pa. 51.335; Stewart Y. Erie
W. T. Co. 17 IIIinn. 372; McCoy v. C., r., St. L. C. R. Co. 13 Fed. Rep. 7; Hays Y. Penn. Co. 12 Fed. Rep. 309; Express Co. Cases, 10 Fed. Rep. 210, S6? 2Pickford v. G. J. 1<. Co. 10 1\f,es. &: W. 399; S. C. m Equity. 3 Eng R. &. C. Cas. Baxendale v. G. W. R. Co. 14 C. B. (S. S.) I; Baxendale v. G. W. R. Co. 16 C. B. (N. S.) 137; Sutton Y. G. W. R. Co. 3 H. &; C.I'OO; Baxendale Y. L. 8:. S. W. R. Co. L. R. 1 Exch. 137; S. C. 4 If. 8:. C.130; Palmer &; &;
f3L1
FEDETIAL
UGPOUTEi":.
states this rule has heen enacted in the form of statutes regulath-e of railways, but such statutes are declaratory merely of the common law. There must be, in performing public services, no unjust, unreasonable discrimination oetweell persons. This is the rule governing all wllo serve tile puolic, no matter what may OP, the nature of the service t1wy ren(1er, nor what may oe the politieal or legal statas of the servant. lIe may he a private person or a pnblic person, a natural person or a corporation. Tile question to oe answered is: Is the service nmderPlj for the puolic r If it is, it must oe performetl alike for all who are similarly situated. Governments themselves in the United States cannot discriminate nnequally and unreasonaoly aluong their citizens. Still less may corporations, which are out the creatures of government, so discriminate. It results from these principles that the Chicago Board of Trade, or any otller similar assodation undertaking to serve the pulllic with information, cannot lawfully single out one person or firm and unreasonallly delly to them the information which it holds itself ready to furnish to all the rest of the llusiness world. These views derh-e so:ne sup,)ort from a decision by Chancellor TULEY, of Chicago,! "ho saiu: "The lJoard of trade does not profess to be engaged in a moral reform movement, nor is its action aimed solely at the' bucket-shops,' as the preamble to this resolution passed by its managers shows its grievance to be that 'market quotations, to the injury of our members, are furnished parties no way contrilJuting to the support of the board.' It is competition, not immorality, which the lJo:Jnl of traJe is seeking to put down. .. It is evident that if the managers can dictate that the quotations shall not be furnished this complainant, tlley may cut off from receiving the same every merchant, cOlllmission house, broker, banker, or other persons outside the lJoard, and mill;ht, if they thonght proper, uictate that only one man in Kew York city-Jay Gould or Keene-should be permitted to receive them by telegraph. In snc]l' case there wonhl be but little difficulty in obtaining a monopoly in the dealing in and ,brokerage of grain and other commodities. "What forestalling of the market might take plalle, and what gigantic monopolies might lJe built np in cOllllllercial centers, where values are determined lJy the ruling prices on the Chicago Board of Trade, Neither the estalJlishillg of monopolies nor the destroying of competition is looked upon with favor bv the courts. " The cO:'poration known as the Chicago Board of Trade was organized more than a qr,arter of a centm'y ago, by a few merchants of this city, for their own convenience in the transaction of their business. By reason of the \Vonlerfut development of the country tributary to Chicago as a cOlllmercial center, Y. I,
&. S, W. R, Co. L. n.1 c. P. 588; west ", L. X. \V. n. Co. L. R. 5 C. P. 62"2; rAlmer v. L. B. &. 8. C, R. Cu. L. R. 6 C. P. Parkmson Y. G. \V", R. Co. L. R. 6 C. P. n:"'H; En elluaie v. G. \\". H. Co. ;) C. n. (N. S.) 30J; Ill. 3.3·; Nichol'"'on Y. G. W. R.Co 5 C.B. (X.S.)366; Garten Y.G. W. R. Co. hI. 66.1; Garten v. B. &. E. R. Co. 4 II, /.; X. 6 C.B. ([\". S.) 619: Bennett v. :II.S . .I.: L R. Co. Ict. 707; ;\'"icholsoll Y. G. W. R. ro. 7 C. B. (X. S.) 755; Ransome v. E. C. Jt. CO.8 C. B. (X. S.) 7019; G<lrten Y. B. &:: E. R. Co 1 n. & S. 11:Z; Bax. endale Y. B. &. E. H. Co. 11 C. B. (;\,". S.) 787; Branley v. S. E. R. Co. 12 C. B. (X. S.) 63; Bax_ endale v. L. &. S. R Co. Id. 15'3; Parker v G. W. R. Co. 7 &. G.253; Cronch Y. L.&.X W. R. Co. 14 C. B. '55; Cronch v G. X. n. Co. 9 W. II. G. :Vinnie Y. G. .\: S. '\.. n. R. :2 &-
H. L. Ca·. 177; S. C. 31 Enf:. L:&. E. 11; Cronch Y. G. N. R. Co. 11 II. &. G. Ihrker v. R. Co. IS C. B. 46; Parker Y. G. W. H. Co. 6 E. &. B. 77; Cllterbm R. Co. v. L. B. &; S. C. H Co. 1 C. B. (N. S.) 410; B"rrett ". G. n. Co. I C. B. (X. S.) 423; Ran,ome Y. E. C. R. Co.ld. 437; Oxlade v. N. E. R. Co la. 4.;4; Marriott v. L. &; S \Y. R. Co. rd. 49?: Beallell v. E. C. R. Co.2 C. B. (X. S.) 509; PaInter v:L.. B. & S. C. R. Co. Id. 70"2; Ba:tendale v. U. D. R. Co. 3 C. B. (X. S.) Harris v. C. & W. R Co. Jd. 69:3: Jone. V. E. C. R. Co. leI. 713; Baxenda:e v. E. C. H. Co. 4 C. B. (X. S.) 63; Ransome v. E. C. R. Co. Jd.135; Cooper v. L. &s. W. R. Co. Jd. 733; PIddington v. S. E. R. Co. 5 C. B. (X. S.) 111. t Public GrHin and Stock F:xch:ln::re Y. 'V. U. T. Co., Circuit Court of Cook county, ::\Iar, 1533.
DRYANT
t'.
WESTERN UNION TEL. CO.
831
the business done upon the floor Of this board of trade has become a great and controlling factor in lixing the prices or value of grain, meats, and other commodities, not ouly throughout the United States, but to some extent in Europe. Millions upon millious of property. consisting principally of wheat, corn, and meats, the common necessaries of life, are affected in value daily and hourly by the transactions hail upon the floor of this board of trade. So widely exteuded anti important has the iutluence of the business there transacted been upon the price ,of grain and provisions, so much is the public interested in lmowing and in ascertaining the results frol1l hour to 110111' of that business, that I cannot bring my mimi to the conviction that this business. ami these market quotations,-if they are the property of the board,-are not ·affected with a pUblic interest,' whereby they cease to be private property only. within the principles so clearly and forcibly laid down in the MUllU and Scott warehouse case. JIunn v. Illinois, 94 U. S. 113. .. This market on the tIoor of the board of trade stands in 'the gateway of commerce.' The members on the floor of the board of trade take' toll,' by way of commission, UpOll four-fifths of tlte wheat and other prollucts of the great north-west-an empire in itself. These products--such is the course of trade-must, whether the owners desire it or not, pass thrO!lgh the board of trade market. A membership of the board, which confers the privilege of participating in the taking this' toll,' is worth $10,000. It can make no difference in principle whether this' toll' is taken by the corporation or by the mem bel'S, the result to the public is the same. "It may be true that neither the courts nor the legislature can interfere with its control of its own floor, or with the right of the board to discipline its members. But I am clearly of the opinion that the business transacted upon the noor of the board of trade is 'affected with a public interest' to an extent which would authorize the legislature, and the courts in the absence of legislation, to prohibit the board of trade exercising any discrimination as to who shall receive from the telegraph companies these market quotations, or as to what telegraph companies shall be allowed facilities for distributing the informntion to the public. It is opposed to the very spirit of its charter that it become a monopoly or a close corporation." This is not denying to the board of trade the right to keep its transactions entirely secret from the public, if it choose to do so. Whether or not this may be done may be questionable; but it is not necessary to discuss the pOint, since the board desires, not secrecy, but discrimination. X or is it even saying that the board lOay not make a just discrimination as to who shall be furnished with its prices. It is only unjust, unreasonable discrimination which is within the prohibition of the law. Just and reasouable discrimination is proper. A railway company must furnish transportation eqnally for all; but it may eject or refuse to carry one who persists ill gambling on the train, just as it may pnt otI 01' decline to take a lIJall with the small-po\:; and if it be clearly estaltlished that a business man or firm uses quotations furnished by the board for a gambling purpose exclusively, the bo:tnl might justifiablyanll lawfully refuse to furnish him its prices, as was cOll1mellllably decided in the principal case. The criterion b,- which it is to be lletermined whether the transaction is gambling 01' not, 'is the intentiou of the parties. If they intend an actual bonafide sale and delivery it is a lawful transaction, and this although a settlement may be made finally by a payment of differences. Bnt not so if they in fact intend merely to bet upon the turns of prices. Then the transaction is gambling, and as such all acts and contracts in furtherance of it are iJlega],! 1 That thiB is the Inw. soe Cobh"\", Prell, 15 Fe,]. Hep. 774; Y. Am. V. Tel. Co. llFeJ. Rep. EJ3; Bruce's .-\ppeal, t"1.) Pa. SL 91; Smith ,<Bon. "'ler,70 Pa. St. 325; 1.Lixton Y. Gheen, 75 Pa. St-
832
But in the light of an Indiana decision it may even be doubted whether the fact that the .· ticker," or the information it conveyed, was to be used for gambling or other immoral purposes, would warrant the telegraph company in removing it. In W. U. Tel. Co. v. .Ferguson 1 it was decide dthat the telegraph company could not refuse to transmit a message to "send me four girls" on the ground that the girls were intended for purposes of prostitution. "·We know of no provision of law," said the court, "which would authorize the appellant, or any of its agents, to inquire into or impngn tlw motives of anyone who might desire to transmit a message, couched in decent lauguage, over the appellant's telegraphic lines; and certainly we are not aware of any law which makes the appellant or any of its 6111ployes, a censor of public or private morals, or a judge of the good or bad faith of any party who may seek to send a dispatch over the appellant's lines." Another point may be suggested. A telegraph company is a public corporation, exercising public franchises,-e. g., eminent dOlllain,-and serving the public in all ways for which it is competent. It is an agent of the public. As a part of its business it collects, in the various cities and places to which its lirtes run, information of ruling market prices. This information it transmits over its lines, and sells it to such of the public as desire to buy it. Now, when the board of trade admits the reporters and operators of a public agent to its rooms, and allows them ta take and transmit quotations of prices, does not the board m:1.ke a publication of its prices to the puhlic, which entitles the public to use them without restriction? ]s not the giving of such prices to an agent of the pnblic a publication of trem for Cle benefit of the pnlJ.lic? If it publishes its prices to the wurld, tan it say that certain persons shall not a vail themsel ves of them? The pnblicatiun is not copyrighted. Can the board restrict the nse of published quotations uy the public any more than an author who has no copyright can, after publication, restrain the subsequent publication of his work by all who choose to print it? Again, the telegraph company is a "public servant." 2 It is like a common carrier. As a public servant and as a common carrier, can it say that it will not carrv for A. because B. does not desire it to do so? Can it avoid performance of its duties as a puulic servant uy a contract with someuody not to perform them? The decisions appear to answer these questions negati vely. In ::3tate ex rel. v. Bell Telephone Co. a it is decided that" a pUblic servant cannot avoid the performance of any part of the duty it owes to the entire public by any contract obligation it may enter into, even with the patentee of an invcntion." 4 JUdge BLODGETT, of the United States circuit court, northern district of Illinois, holds views somewhat variant from the fureguing. "The material question, as it seems to me," says he, "is whether the board of trade is obliged to allow reporters of the telegraph company on the floor of its exchange for the purposes of coliecting alitI transmitting reports of the market therefrom. Comphlinant insists that the public have a right to the information affurded by these market reports, and that because the two defendants are corporations, the board of trade is obliged to allow reporters on its floor, and the telegraph company is ouliged to transmit such reports to whoever requires them, and is lGG; SWArtz's Appeal. 3 131; F:ueira v. Gatell. 89 Pa. St. 89; .Korth Y. Phillips, 89 POl. St. 25; Gheen v. Johnson, 90 Pa. St. 3S; Ruchizky v. De Haven. 97 Pa. St. 202; Porter Y. Viets, 1 Biss. 177; In re Green, 7 Biss. 33S; Clark v. Fo!"s, 7 Biss. 5-:l.0j Rllmse:r v Berry, 6.') :,Ie. 570; Xoyes v. Spaulding-, 27 Yt. 420; Sampsun v. Shaw, 101 r,Iass. 145; Bigelow v. Benedict, 70 :X. Y. 2ft2; Story v. Solomon,71 X. Y. H'lrris v. Tun... bridge, S3 X. Y. 95; L)'on v. Culbertson.8J Ill. 33; v. "'''en dell , 39 :!\!ich. 337; Barnard v. Backtlalls. 52 \\"ts. 593; Sawser Y. Taggart, 14 Bush. 727; \Vilheim v. Carr, 80 N. C. 29-1. 1 £-17 ] nd. 49Z>. 2State ex. reI. v. Bell Telephone Co. 11 Cent. Law J. 350. 3Sl l pra.
iSee, New Exp. Co. T. )1. C. R. n.. 57 .:'iIe.ISS, 198; v. RaUroad 52 N. H. 455; Sandford v. R. R. Co. 24 Pa. St.3id.
833
wlllIng to pay for them. The board of trade is a private corporation. It exercises no franchise which clothes it with any of the duties of a public corporation; it has no power of eminent domain, al1lI no such duties are charged upon it toward the public as have heretofore been held by the courts to characterize or distinguish a public from a pri vate corporation. It is only an association of merchants dealing in the prOllucts of the country, who, solely for their own convenience, provide a rooUl where they meet to transact business. They have a right to exclude all other persons from the meetings of the board, or to admit only such as they choose. If out of compliment tltey give one person a ticket to their /toors, it furnishes no reason why they should issue a similar ticket to another, any more than because one of its members invites a g\.Iest to dine at his house, the whole public have the same right to an invitatIOn. As the proof shows, the board at great expense secures for the use of its own members reports of the market rates in other p,lrts of the world. The claim of complainant, if allowed, would make these reports pUblic property, and give the persons not members of the board, and who, perhaps, never could attain the position of membership of this botly, all the advantages of membership; that is to say, if a person who has been expelleu from this iJody for violation of its rules and regulations can thus compel the iJoard of traue to allow the telegraph company to send to his office in this city or elsewhere reports of transactions on the iJoard, he has all the iJenetits of a membership from which he has iJeen excluded bv perhaps his own misconduct. It is absurd to say that information thus for private use becomes public property merely because it is collected and paid for through the agency of a private corporation. Transactions on the board are not public only so far as the board or its members see fit to make them so. Undoubtedly the members of the board who act as agents, brokers, or factors fOl' others can be compelled by their principals to disclose prices to them, but not to the public. It is only those acting on the board for others-their principals-who can be reqniretl to make disclosnres of their transactions, and then not to the public, but only to those for whom they are acting. Members of the board can go" on 'change" and deal with each other privately, and are not compelled to let the pUblic know the prices at which they deal. The mere fact that they have been in the habit of informing the public of prices is no evidence that they are obliged to do so if they do not see fit to do it. In fact, we often see, as a matter of common knowledge and information, quotations made of large transactions between different dealers on the board in commodities, at prices not made public. thereby showing clearly that they exercise their own option of withholding from the public information as to their prices." 1 These views are, in some respects, unsound. As previously pointed out, the duty of the board of tratle, or any other person or company, in dealing with the public, cannot always be determined solely by reference to the status of the person or company as being private or public. It is true that duties to the public may result from the pUblic character of the company or person, but it is equally true that such duties may be imposed upon a person or company that is private;, witness the dnty not to discriminate unjustly laid upon private companies, and even indivitluals, who are engaged in common carriage. It is the nature of the service, and the fact that it is rendered for the public, and not the political or legal status of the servant, that brings him or it within thA rule of law prohibiting unjust discrimination, and it cannot be concluded that oecause "the board of trade is a private corooration," possessing no power of eminent domain. and exercising no public franchise, .. that no such duties are charged upon it toward the public as have heretofore been "Wet. Gr. &: St. Exchange T.
Boar4
or
Trade, 15 Fed. Rep. 850.
v.17,no.12-53
FEDERAL nEPOnTEn.
held by the courts to characterize or distinguish a public from a private corporation." If the board of trade performs a service for the public, it must perform it in the manner directed by the public, no matter whether it is a private or a public corporation. In such a case the public or private quality of the company is immaterial. N or is the dissemination of its prices a matter of compliment indulged in by the board. It is a matter of business,-a service rendered to the pnblic which is productive of ample profit to the boa.nl, accruing from the purchases and sales made by its members,-transactions to which the dissemination of its prices is highly essential. Further, it is not true that to allow an expelled member of the board to receive quotations by telegraph is to give him" all the benefits of a membership from which he has been excluded by, perhaps, his own misconduct." lIe is still deprived of his right to buy and sell in the markets of the board from which he is excluded; a privilege worth many times more than the information as to the ruling prices is worth. The better view appears to be that the board of trade may keep its proceedings entirely secret, if it chooses; but if it undertakes to make them public it must serve all alike, and impartially, in giving information of them. Can a telegraph comp.'lny lawfully refuse to furnish a person with an instrument known as a "ticker," by meaus of which these quotations are disseminated? The custom of the board of trade has been to allow reporters and operators of the telegraph companies upon the floor of its business apartments during business hours, in order that they may ascertain the ruling prices and telegraph them wherever the telegraph reachE's. If the telegraph company and its reporters and operators be considered in the light of agents of the board, their duty as to distributing this information is undoubtedly the same as the duty imposed by the law upon their principal. They cannot discriminate unjustly any more than the board itself. But if the telegraph company and its employes be considered apart from the board, an intere:;ting question prBsents itself. Is it the duty of a telegraph company to collect aUd transmit information? On this point JUdge BLODGETT says: "The further reason which was urged in behalf of the telegraph comp,my, that it is no part of the duty of the telegraph company to transmit inf,)J'Hlatiou, seems to be cogent anll forcible. If they volunteer to follow th,lt nlass of employment, they are bound, perhaps, to do it with fidelity while thcir contract continues; but whenever they terminate their contract, no person can compel them to enter into another, or to continue it when they wish it terrninatec1." 1 ,And JUdge in BNdley v. W. U. T. says: .. It appears that the defendant has been engaged in collecting these (lllOtations and furnishing them to parties carrying on business in tlifIerent places, at a stipulate,l price. These quotations are known in the trade as commercial news. This business of collecting and furnishing com'mercial news is separate and distinct from the business of the defendant as a common carrier. The defendant, as a common cmTier, can properly only receive messages from one person to be transmitted over its wires to, another; amI, acting as a bailee in collecting this commercial llews anll furnishing it to customers, it is in the same position as a prh'ate person would be who and sells goods. One is tangible and the other Intangible, but there is no ditference in principle. This business being in its nature pri\'atealHl not public, the defendant could furnish commercial news to any person it pleasell,' aIHi \vithho1l1 it from an)' person it pleased. and is not uncier any suell as it is in its relations. to the public as a carrier of h fte.. so, ;lIld this contract not etc., v. Board or TraJe, Ij FeJ nep. S5J. __ . 2Cincimnti Com. G:lZ , April 8, lS.31.
BRYANT
V.:: WE.S;rERN -,UNION, TEL. CO.
835
havinO' been made for any definite length of time, the court cannot compel the defentl:mt to continue furnishing the news to the plaintitI. If the plaintlff has been injured, he has an adequate remedy in an action at law for his danJ:l,!.\'es." It may be true that it.is not the duty of a telegraph company to collect information-to become a public collector of news; 'and it may also be true that it is their privilege to withelraw entirely from such a business. But it is not withdrawing from the business to rcfuse to furnish one person with information collected for and furnished to all others of the public who desire it. T!Jis is discriminalion in IHlsincss, not retirement from it; and if the telegraph company undertake that duty at all, it is diflicult to see why it should not perform it in the manner prescribed by law; and allmiaing that the telegraph company stands in the position of a private person who Imys and sells goods, it lllay be questioned, in the light of the well-Imo\\'n Grauger decisions,l whether it would have a right to discl'iminate, without reason or justice, as to the person to wholll it will sell the informatiun it colleets. Can.a person engaged in se!ing goods to the public so discriminate? Suppose there was but one depot of su pplies of fuel within reach cf a cOlllmunity; that it was owned by a store-keeper, who, while holding himself out ready to serve all who might apply for goods, should, because of some persllllal dislike, refuse to scll supplies to A. Would A. be compelled to rClllain without fuel, although ready to buy and pay for it, and although all of his neigllbors were sold to without objection? These questions may seem almost absurd to one accustomed to regard property subject absolutely to the control of the owner. But with modern capital and facilities for combination, many staples are passing into the control of men who, as corporate bodies, deal with the pUblic as a single individual. For example, the entire oil product is monopolized by the Standard Oil Company. The manufacture (If tacks is entirely controlled by the Central Tack Company. Wall paper is also monopolized by a pool. There is hardly a branch of business but has its monopoly, of whom the public must buy or go without supplies. It can hardly be admitted that the common law is so deficient in principle as to leave the public without remedy in case of a refusal of these monopolies to supply it, without unjust discrimination and upon reasonable terms. The business of telegraphing, and all its incidents, is also in the hands of a monopoly. In dealing with the public it mllst obey the same rules as are applied to railway companies and other public servants. It may be conceded that telegraph companies are not strictly common carriers because they do not have tangible possession of goods to be carried. 2 But their employment is of a public nature, and they are bound by the same rules applicable to other public servants, including common carriers. Finally, may be noted the case of State ex rel. v. Bell Telephone CO.3 There one of the defenflants, a telegraph company, refused to supply complainant, .another telegraph company, with a telephone. having agreed with the patentee and licensor (also a defendant) thereof not to lease the instruments to other telegraph com panies. . It was decided that, notwithstanding this agreement with the patentee, and notwithstanding- his monopoly of the invention patented, it having been leased by him for public purposes to a telegraph company, that company must furnish instruments for the use of whoever desired them, it heing a public servant, and, as such. posse"sing no right to discriminate unreasonably as to whom it would provide with its illstwments. This appears to be the correct view. Chicago. ADELllEP.T trtlonn v. illinois. 9t U. S. 111 U uq. t Baldwin v. U. S. Tel. Co. 1 13:"; 54 105; 6 Abb. Pro (';. S.) 40.;; Leoolaru ,'. NY.· etc., Tel. Co. 41 Y. &:1-1; .\ikcn v. CO.5 S. C 35'; Grennell v. W. U. Tel. Co. 113 M"". 2!lg; Bree.e v. U. S. Tel. Co. 4:l N. Y. 132. I
3G Ohio St. 480
836
fEDERAL REPORTER.
v.
PLATT.
(Circuit (Jourt, 8. D. New Ytn'k. August 16,1883.) R\NKRUPTCy-DISMISSAL OF ApPEAL-COSTS.
Where an appeal from the disallowance of a claim by the district court !.II dismissed for want of jurisuiction, docket fees orotl1er costs are not taxable.
In Bankruptcy. WHEEJ,ER, J. 'rhis appeal from the disallowance of a claim by the district court in bankruptcy is dismissed for want of jurisdiction. The appellee claims costs of the motion, admitting that he is not entitled to costs of the cause, and that no costs but for a docket fee are taxable on the motion. The language of the supreme court upon this subject is uniform and decisive. In Inglee v. Coolidge, 2 Wheat. 363, Mr. Chief Justice MARSHALL said: "The conrt does not give costs where a cause is dismissed for want of jurisdiction." In l\JcIver v. Wattles, 9 Wheat. 650, he said again: "In all cases where the cause is dismissed for want of jurisdiction no costs are allowed." And in Strader v. Graham, 18 How. 602, the court said: "This court cannot give a judgment for costs in a case dismissed for want of jurisdiction." Hayford v. Griffith,3 Blatchf. 79, cited for the appellee, does not appear to have been dismissed for want of jurisdiction entirely, but for want of security. This fee is taxable only in cases where by law costs are recoverable in favor of the prevailing party, under section 983, Rev. St., and as a part of such costs. Goodyear v. Sawyer, 17 FED. REP. 2. This court had no Jurisdiction by this appeal of any cause in wbich to lender judgment for costs. If there were other costs on the motion which could be allowed, this fee would not be taxable in addition to them, for they would not be taxable in the cause on a disposition of it on the merits. Dedekam v. Vose, 3 Blatchf. 77, 153. And, further, this appeal is a case at law, as distinguished from cases in equity and admiralty, and in cases at law tho allowance of such a fee is provided for only on trial by jury, when judgment is rendered without jury, and when "the cause is discontinued," except in some special proceedings different from this. Rev. St. 824. Here is no jury trial, no judgment rendered, no to render judgment in, and none to be discontinued; and consequently nothing on which the docket fee is taxable. Motion for costs denied. Coleridge A. IInrt, for appellee. Black et Ladd, for appellant.
