author: Ball, J.:

text:
      (Superior Court of Cook County. In Chancery.)

    James L. Morris, by his next friend. vs. Roughan (Rowan).
    (1899.)
    Insane Person—Equitable Jurisdiction to Appoint Temporary Receiver Until Appointment of Conservator by Probate Court. Where it appears that a person is insane and incapable of managing his property and business, held that a court of equity has power to appoint a temporary receiver until the-probate court has appointed a conservator for him.

      Bill for appointment of temporary receiver of property of insane person. Gen. No. 202,439. Heard upon affidavit and oral evidence in behalf of complainants and defendants, before Judge Farquin Q. Ball.
    The facts are stated in the opinion.

      C. M. Durand, for complainant.

      Atwood, & Pease, M. S. Bradley, and Cutting, Castle & WilMams, for various parties.
   Ball, J.:

This is a bill brought by James L. Morris, by his next friend. It states that Morris is the proprietor of a large stove repairing business; that he is childless and a widower, his wife having recently died; that since July of this year he has been ill and constantly confined to his house; that he is suffering from tuberculosis, which disease has progressed so far as to impair his mind; that he is now in a state of confusional insanity, and Avholly incapable of transacting or caring for his business; that Avhile thus insane, and on August 16, 1899, he was induced by the defendant Rowan to convey certain real estate, the equity of which is worth $15,000, to his, Morris’ wife, who is the sister of the wife of Rowan; that this deed Avas Avithout consideration, was never delivered to the grantee, and was by Rowan fraudulently kept from public record until .after her death; that such business is being carried on by RoAvan, under a pretended power of attorney, obtained by him from Morris on said August 36th, at which time the .grantor was wholly insane; that Rowan has had no experience in such business and is insolvent; that the credit of the business is being impaired, and the landlord and other large creditors are threatening to collect their claims by legal process unless Rowan be removed and some competent person be placed in charge until the probate court can pass upon the petition filed in that court, for the appointment of a conservator of the insane complainant; that when such officer has qualified as such, he be substituted herein as complainant.

The application before me is for the appointment of a temporary receiver. The hearing is upon the sworn bill, upon the evidence of certain witnesses examined in open court, and upon affidavits filed by each party hereto.

In answer to this application it is said that this court has no jurisdiction to appoint a receiver for the property of an insane person until after the proper court has appointed a -conservator for him. This contention admits all the allegations of the bill which are properly pleaded. It admits waste and spoliation by Rowan, the insolvency of Rowan, and the insane condition of Morris.

Every lawyer knows, and therefore the court must be presumed to know, that some time will pass, probably a month, before the probate court can act upon the application for a conservator. In that interval, unless this court has jurisdiction, the estate of the insane person is wholly at the mercy of those having it in charge. I say “unless this court has jurisdiction,” since it is provided by the constitution that the '“circuit courts shall have original jurisdiction in all causes in law and equity.” Sec. 12, Art. VI. And hence if this court has not the power to preserve this estate, such power nowhere exists. The law is not so impotent as to be unable to protect an estate of a person under disability from injury by another solely because the probate court has not had time to appoint a conservator for the unfortunate owner. The law -does not tolerate an interregnum. I have no doubt of the jurisdiction of the court in this ease; and I am glad to say that under the authorities it is hardly a disputable question. Jones v. Lloyd, 9 Moak, 792, and case there cited.

The evidence strongly preponderates that Morris is insane .and is wholly incapable of transacting business. Two of the most skilled alienists in the city, after a careful examination, affirm in open court and under cross-examination that he is a victim of eonfusional insanity; and each of them testifies to specific facts which irresistibly support such conclusion. As to whether Rowan is wasting-or mismanaging the estate, is not so clear, the affidavits upon this point being conflicting. But this is true, that the principal creditors are alarmed and unite in the request for his removal. Prom all the evidence ¡before me I am inclined to the opinion that under the circumstances he is an improper person to have charge of this estate. It is better for all concerned that it temporarily be placed in the control of some competent and disinterested person.

The prayer for a receiver to act until the probate court has decided whether or not it will appoint a conservator for Morris is granted.


source: Caselaw Access Project

author: Holdom, J.:

license: Public Domain

text:
      (Criminal Court of Cook County.)
    The People of the State of Illinois vs. Charles Davis.
    (February, 1901.)
    1. Bail—Application foe—After Verdict of Guilty. Under the Illinois statute all persons are entitled to hail at any time before conviction, except where the offense is a capital one. Held, that where the defendant was indicted for reeciving stolen property the verdict of a jury finding the defendant guilty was a conviction, even though a motion for a new trial was pending, and that such defendant was not entitled to be released on bail.
    2. Bail—Nature of. Bail is both a constitutional and statutory right, and the court has no discretion in the matter except to fix the amount.
    Motion to admit to bail after conviction by jury of offense of receiving stolen property. Heard before Judge Jesse Holdom.
    Motion denied.
    For statement of facts see opinion.

      A. G. Barnes, assistant state’s attorney for the people.
    Wro. S. Forrest, for defendant.
   Holdom, J.:

The defendant was indicted and tried before the court and a jury on a charge of having received stolen property knowing the same to have been stolen, and a verdict of guilty returned and a motion by defendant for a new trial entered. The cause is now before the court upon an application to admit the defendant to bail pending the disposition of the motion for a new trial.

The argument of counsel for defendant resolves itself into but one question, which is: What is a conviction within the meaning and intent of the statute on bail which provides “that all persons shall be bailable before conviction except for capital offenses where,the proof is evident or presumption great. ’ ’

Several illustrations in point may be gathered from our statutes. Chapter 38, Criminal Code, Div. 14, Par. 631, provides “That no person shall be imprisoned for non-payment of a fine * * * except upon conviction by jury; * * * and provided further, that when such waiver of jury is made, imprisonment may follow judgment of the court without conviction by jury. ’ ’

In paragraph 634, supra, “Any person convicted in a court of this state having jurisdiction of any crime or misdemeanor the punishment of which is confinement in the county jail, may be sentenced by the court in which such conviction is, had. * * *”

Bouvier’s Law Dictionary, Rawle Edition, defines convietion as “the legal proceeding of record which ascertains the' guilt of the party and upon which the sentence or judgment-is founded.” Citing Nason v. Staples, 48 Me. 123; Commonwealth v. Lockwood, 109 Mass. 323; Commonwealth v. Gorham, 99 Mass. 420.

Another definition there found is: “Finding a person guilty-by verdict of a jury.” Citing 1 Bishop, Criminal Law, see.. 223.

The doctrine enunciated in Faunce v. People, 51 Ill. 311, is not applicable either on the facts or the law to cases of bail.

The statute disqualifying a person from testifying as a witness invoked in Faunce v. People is but declaratory of the common law and must be construed with that fact in view. At common law conviction of certain crimes, when accompanied by judgment, disqualifies the person convicted from being a witness. Judgment must follow conviction in order to work a disqualification for non constat a new trial might be awarded. It is the imprisonment following on the judgment of the' court which makes the person infamous and which must concur with the conviction in order Jo disqualify.

Bail is a legal right about which courts have no discretion, except to fix the amount. It is both constitutional and statutory. I hold, however, that the verdict of a jury is a conviction in law and within the meaning of the statute on bail, and that in his present position the defendant is not bailable.

The motion to admit to bail is therefore denied.


text:
      (Superior Court of Cook County. In Chancery.)

    F. S. Webster Company vs. Henry J. Frank and Sol. L. Lowenthal.
    (April, 1903.)
    1. Streets—Obstructions in—Power of City to Authorize. It is not every obstruction of a street or sidewalk that is illegal. If the obstruction is authorized by the municipality and is properly constructed so as not to interfere with the public use of the street or sidewalk, it is not to be regarded as a nuisance. But it is indispensible that the street or sidewalk be left free for the public use and in as safe a condition as it would have been without such obstruction.
    2. Same—Awnings Over Sidewalk. Where the defendants under the authority of a city ordinance erect an awning over the sidewalk in front of their premises, and such awning does not interfere with public travel, an adjoining property owner is not entitled to an injunction restraining the maintenance of such awning. 3. Same—Interference With View. As to any interruption of complainant’s facilities of outlook in the sense of view merely, it is well settled that injunction will not lie as mere interference with prospect is not an incident of the estate, and there is no remedy in the absence of a contract.
    4. Streets—Manner of Use—City Council May Prescribe. The manner of the use of the streets is for the city council to prescribe, and where such city council by a general ordinance authorizes the erection of awnings over a public sidewalk no complaint can he made.
    5. City Council—Powers to Pass Ordinance as to Erection of Awning. The city council under the power to “regulate the use of streets for signs, awnings, awning posts,” etc., is authorized to permit the erection of awnings over sidewalks.
    Bill in equity. Motion to dissolve preliminary injunction. Heard before Judge Jesse Holdom.
    For statement of facts see opinion.

      Bent & Whitman, for complainant.

      A. W. Pulver and' F. E. Culver, for defendants.
   Holdom, J.:

Complainant occupies as lessee a store, No. 139 Madison street, with a basement thereunder, and a like basement under the adjoining number, 141. The business there conducted is dealing in typewriters, and in the store the typewriting machines are displayed with artistic lettering on the store windows calculated to attract the attention of passers-by and of sufficient conspicnousness in size as to be viewable for some distance on Madison street which in this particular vicinity is unobstructed in both directions. Defendants operate a theatre east of and adjoining the store of complainant, and it is averred have commenced to construct in front of their theatre a permanent awning of durable material to extend from their front wall at or about the top of the first story of the building to or near the edge of the sidewalk; that complainant is entitled to the undisturbed enjoyment of the air and light upon Madison street in the use of its premises; that the construction of the awning by the defendant will abridge such light and injure its business and work irreparable injury; and further charging “that such awning is one which could not be properly licensed or authorized by the city of Chicago, and if defendants have obtained any such license the same is void. That defendants on or about September 12, 1902, procured to be issued by tile commissioner of buildings of the city of Chicago a license or permit to construct an iron and glass canopy at number 137 Madison street to be upon same, plan exhibited by defendants and is the structure complained of.”

A temporary injunction has been granted and the cause is; now before the court on a motion to dissolve the injunction on the hearing of which affidavits pro and con were read in evidence in support respectively of the bill and answer now on-file.

It is not disputed that defendants claim to act in the construction of such awning under power of a general ordinance-of the city of Chicago in relation to awnings, being Sec. 1824 of the Revised Ordinances of 1897, viz.:

“Fixed awnings may be constructed over sidewalks, as protection to the entrances of buildings, provided such awnings are constructed of a metal framework, filled with glass, not less than three-quarters of an inch thick, and supported entirely from the structure of the building and without posts or other obstructions upon the sidewalk. Such awnings shall be-of the width of the entrances which they protect and shall extend over the entire width of the sidewalk in front of the same. The lowest part of the awning shall be at least ten feet above the sidewalk level. Any person who shall erect any awning contrary to the provisions hereof or refuse or neglect to forthwith remove any awning or awning-post heretofore or hereafter erected contrary to the provision hereof, shall be subject to a penalty of five dollars for every offense and to a further-penalty of five dollars for every day he shall fail to comply therewith, after written notice from the commissioner of buildings to remove the same.”

That thereiinder plans for the proposed awning were submitted to and approved by the commissioner of public works- and a permit for its erection granted—but complainant contends that the city council had no power to pass any such ordinance nor any power to grant to any person the right to-do anything the natural result of which would be to curtail the air, light or prospect to complainant’s store.

In support of this contention the principles of law announced in Field v. Barling, 149 Ill. 556; Hibbard v. Chicago, 173 Ill. 91; People ex rel. v. City of Chicago and Marshall Field, 193 Ill. 543 (in which, latter case this court is referred to the reason and the law stated in the dissenting opinion by Mr. Justice Magruder, the only member of the court who does not concur in the opinion filed in the case); McGann v. The People, 194 Ill. 526, and other cases are urged as applicable and decisive of the complainant’s right to have the injunction continued in force.

In the Field case the common council by resolution attempted to grant the right to Field to construct across Holden Place a three story bridge to connect the old with the new building of Field then in process of construction. Holden Place was a public street, forty feet,wide, platted as such in the original subdivision by the ■ Federal government. The complainant owned property abutting on this street to the north of this proposed structure and claimed that its construction would materially damage his property as to access, light, air, rental and salable value, and it was held that the city holding the streets as it does in trust for the public use, had no right to permit any use or diversion from public to private interests; that the right attempted to be granted by the permit was a special privilege to a private person in public property and was therefore within the constitutional inhibition and void.

In the Hibbard ease the offending awming was constructed and maintained under a special license and permit in violation of an existing general ordinance governing and regulating the erection and maintaining of awnings. The council revoked the permit and ordered the awning taken down. Hibbard sought to thwart the action of the city in this regard by injunction. The manner of the construction of this awning made it an encroachment and an obstruction upon the street. It was in fact as well as in law a purpresture. It was' held that the mere consent of the city council by resolution or order gives no vested right.

The case at bar differs materially upon principle to the cases cited by counsel for complainant. The right in the latter cases was claimed not under a general ordinance applicable alike to all, but as a special privilege by resolution of the council; rights claimed thereunder could be terminated at any time at the pleasure of the council.

The principal question to be primarily determined is whether or not the ordinance, supra, under which defendants are claiming the right to erect the awning which is sought to be restrained in this cause, is within the power of the city council to enact. Subdivision 17, sec. 1, art. V, title, “Cities and Villages,” confers among other powers on the city council to “regulate the use of streets for signs, awnings, awning posts,” etc.

Is see. 18 of revised ordinances of 1897 in excess of the power there granted or subject to criticism as being obnoxious to constitutional limitation?

The supreme court has not judicially interpreted this section of the ordinance relating to awnings. The nearest case in point is Smith v. McDowell, 148 Ill. 51, which by analogy is decisive of the case at bar. The court said on page 65: “It by no means follows that every obstruction of a street is a purpresture or illegal. Thus the necessary and temporary obstruction incident to the use or repair of a street, * * * excavations under the street authorized by the municipality and the like (Gridley v. Bloomington, 68 Ill. 47) if temporary and reasonably necessary must be borne, as a reasonable and necessary limitation of the free and uninterrupted right of use by the public. * * * And so in respect of iron gratings to admit light, openings for admission for coal, flap or trap doors, the extension of signs into the street, and the like, if authorized by the municipality, and properly constructed, so as not to interfere with the public use of the street or sidewalk are not to be regarded as nuisances. But it is indispensable, to take from the use of the street for such purposes the character of a nuisance that the street or sidewalk be left free for the public use, and in as safe condition as it would have been without such use. * * * ”

The structure proposed by the defendants will in no manner affect the use by the public of the sidewalk in front of either the premises of complainant or defendants; the bill charges that it is to be erected at the top of the first story of the building and to be extended to a point over the edge of the sidewalk, precluding any possibility of its interfering with public travel in any manner;.it can not physically interfere with the premises of complainant (it occupying the store or first floor and basement); the awning it is admitted is intended to be constructed of iron and glass to the east and above the store of complainant and it can not to any materially appreciable extent interfere with either light or air.

In Garrett v. Janes, 65 Md. 260, 3 Atl. 597, the court said on page 271: “As to any interruption of the plaintiffs’ facilities of outlook in the sense of view merely, it has been long ago decided that for mere interference with prospect, it not being an incident of the estate, no remedy lies apart from contract. Aldred’s Case, 9 Coke 59; Butt v. Imperial Gas Co., L. R. 2 Ch. App. 158.

The manner of the use of the streets is for the city council to prescribe and they must be the judge of the necessities of condition and environment—they may ornament the streets in such artistic fashion as they may see fit—erection of monuments or drinking fountains would be within their discretion—such are considered in some urban communities desirable. The modern awning is to be found in all cities of any considerable importance as to population, wealth and artistic refinement, and is in these modem times looked upon as a public utility in places to which the public resort in large numbers, such as theatres, hotels, museums, art galleries, churches, etc., and have come to be regarded as a public necessity. When erected in public places, an awning can not be regarded as being for private use, but for the public benefit.

Conceding however, the contention of counsel for complainant as to the correctness of his position on the law of the case we find no facts warranting the application of his legal principles. It must be conceded that there is no obstruction of the public highway possible by the erection of the proposed awning, no interference with the unobstructed use of the street by the public. It can not be contended that there is any obstruction of air of any moment and if there be an impairment of light it is so slight as to be practically inconsequential, it is damnum absque injuria. The last point is the alleged interruption or limitation of view which it is claimed will result from the erection of the proposed awning; as we have already seen no right to outlook or view exists, save by contract. Garret v. Janes, supra. It therefore follows that the city ordinance, supra, is valid as being within the authority conferred by the City and Village Act, supra. This being my conclusion, it follows that complainant is not entitled to maintain the injunction prayed in its bill and preliminarily granted herein and it will therefore be dissolved.


text:
      (Superior Court of Cook County.)

    People ex rel. Sontag vs. W. D. Kruse.
    (Nov. 21, 1899.)
    1. “Flag Law” Unconstitutionai. The Illinois statute known as the “Flag Law” prohibiting the use of the national flag for advertising purposes is in derogation of the constitution and void as not being within the police power of the legislature and coming within the category of laws known as class legislation.
    2. Same. Relator, agent of the Anheuser-Busch Brewing Ass’n, was arrested for selling beer contained in bottles and barrels upon which appeared the trade mark of the Brewing Ass’n, consisting of a device in which stars and stripes appeared on a shield in connection with an eagle, alleged to be in violation of the Illinois flag law prohibiting the use of the national flag or emblem for advertising purposes. Upon habeas corpus, held that the law was unconstitutional and that relator should be discharged from arrest.

      Habeas corpus. Superior court of Cook county. Gen. No. 202,274. Heard before Judges Holdom, Brentano and Stein, sitting en borne.

    The facts are stated in the opinion.

      G. H. Aldrich, attorney for plaintiff.
   Holdom, J.:

This habeas corpus proceeding brings no for consideration and determination the constitutionality'of the so-called “Flag Law Statute,” being an act passed by the legislature of the state and approved by the governor April 22, 1899, containing five sections and entitled “An act to prohibit the use of the national flag or emblem for any commercial purposes or as an advertising medium.”

Relator was arrested on five warrants issued by 0. II. Mc-Conoughey, a Cook county justice of the peace, for alleged violations of this act. Relator is the agent at Chicago of the Anheuser-Busch Brewing Association, a Missouri corporation, with its brewery and principal office at the city of St. Louis in said state. The trade mark of said brewing company appearing on bottles and barrels of beer vended at Chicago by the relator consisting of a device in which stars and stripes appear on a shield in conjunction with an eagle alleged to be the national emblem, is the gravarhen of the offense which is claimed to be a violation of the act for which the arrests were made, to free himself from which relator has sued out the writ of habeas corpus in this case. The trade mark which it is claimed is violative of the statute has been registered as> such in the patent office of the United States and so’ certified by the commissioner of patents in pursuance of the act of Congress regulating.the registration of “trade marks.”

No Federal statute except that establishing the national flag and comprised in sections 1791 and 1792, Revised Statutes United States, and providing also for the addition of a star for each new state admitted into the union, has ever been passed; and as the act of the Illinois legislature now in question does not in any manner conflict with or contravene the Federal statute, and as there is nothing in the organic law of the state or nation limiting in any manner state control of the flag, it. follows that the legislature of Illinois has as much power and right to enact laws in relation to the national flag as congress itself. If, therefore, the act in question is unconstitutional it is for some inherent infirmity which would make it equally so, were it an act of the Federal congress.

There is no force in the contention that the act is repugnant to the commerce clause of the constitution. The fallacy of the argument lies in the assumption that a “trade mark” is in effect a component part of an article of commerce because it is a medium of sale; while in fact it is the goods, of which the trade mark is no integral part, which constitutes the commercial article. The registration of a trade mark under the act of congress providing for such registration grants unto' the party registering it, protection against its infringement by others, and nothing more.

It is contended upon the part of the state that the enactment of the “Flag Law Statute,” is an exercise of the police power of the legislature, and it is urged with much earnestness and confidence that the statute rests for its support upon that fundamental principle. What constitutes the police power is a question of law to be determined by the court. Eden v. The People, 161 Ill. 296; Lake View v. Rose Hill Cemetery, 70 Ill. 191. Is the use of the national flag or emblem for commercial purposes or as an advertising medium a subject for police regulation? If it is, it must be upon the-theory that such regulation is conducive to the health, morals, peace or security of the property rights of the people of the state.

The supreme court of the United States said in Mugler v. Kansas, 123 U. S. 623, on page 661, “If, therefore, a statute purporting to have been enacted to protect the public health, the public morals, or the public safety, has no real or substantial relation to these subjects, or is a palpable invasion of rights secured by the fundamental law, it is the duty of the courts to so adjudge and thereby give effect to the constitution.”

How can the national flag or emblem upon a beer bottle or barrel, as in the case at bar, affect the public health or morals or the public safety? The national flag, wherever found, stands for our highest ideals of a free government, a free people, with free and enlightened institutions; it stands for valor, for patriotism; it is the standard under whose fold the citizen goes to war and sheds his life’s blood for his country’s honor and protection. By an act of the legislature passed in 1897, the national flag was directed to be unfurled over public schools and public institutions, prescribing penalties for its violation.

If the act, therefore, rests upon the police power, it must fail unless it can be so construed as to be an act prohibiting that which is' hurtful to the comfort, safety or welfare of the people of the state. A construction strained without reason •and unatural—the laws of interpretation Applicable to like cases inhibit such a conclusion.

Does the exemption from the operation of the act, which in •section 2 provides that “Nothing in this act shall be construed •as affecting either public or private exhibitions of art,” constitute such a discrimination in favor of a particular class as to make the act come within that coterie of laws denominated class legislation ? By section 2 of this act public and private ■exhibitions of art are excluded from its operation—that is plain. It might be contended that public exhibitions of art were for the benefit of and belonging to the people, and therefore it was an exemption which was not either in reality or effect a discrimination against or in favor of any particular class; and while such a contention is tenable it can not be so claimed as to “private exhibitions of art.” It will'be assumed that private exhibitions are for the benefit and profit of the indiviluals owning the exhibition. There is no limit as to what may be be so exhibited and no definition of how the flag or emblem shall be used in these “private exhibitions of art.” Such an exhibition might contain artistic representations of the various unique devices, by which, anterior to July 1, 1899, merchants and traders were wont to designate their ¡several articles of merchandise by using in numberless ways the national flag or emblem. Such private exhibitions would naturally be for profit and thereby the privileged class contemplated by section 2 would be authorized to do just what anuther and different class are prohibited from doing by section 1 of that act.

Locke, in his treatise on Civil Government, says: “Those who make the laws are to govern by promulgated established laws, not to be varied in particular cases, but to have one rule for rich and poor, for the favorite at court and the countryman at plough.” Cooley, Constitutional Limitations, 484; Strauder v. W. Va., 100 U. S. 303. This view of the law was upheld in Ritchie v. The People, 155 Ill. 98. The Ritchie caséis commonly known as the Sweat Shop Case. It was enacted for the regulation of a particular and designated class; of workers, and was held to be repugnant to the constitution and void. The court said: ‘‘We are inclined to regard the act as one which is partial and discriminating in its character. If it be construed as applying only to manufacturers of clothing, wearing apparel and articles of a similar nature, we can see no reasonable ground from prohibiting such manufacturers and their employes from contracting for more than eight hours of work in one day, while other manufacturers and their-employes are not forbidden to so contract. If the act be construed as applying to manufacturers of all kinds of products there is no good reason why the prohibition should be directed' against manufacturers and their employes and not against merchants or builders or contractors or carriers or farmers or-persons engaged in other branches of industry and their employes therein. Women employed by manufacturers are forbidden by section 5 to make contracts to labor longer than-eight hours in a day, while women employed as saleswomen in stores or as domestic servants, or as bookkeepers or stenographers, or typewriters, or in laundries, or other occupations, not embraced under the head of manufacturing, are at liberty to contract for as many hours of labor in a day as they choose. The manner in which the section thus discriminates against, one class of employers and employes and in favor of all others, places it in opposition to the constitutional guaranties herein before discussed and so renders it invalid. ’ ’

The principles enunciated in this last ease are fully sustained in the still later case of Harding v. The People, 160 Ill. 459. Reasoning analogous to the foregoing may be found in In re Grice, 79 Fed. 627, and In re Garrabad, 84 Wis. 585, 19 L. R. A. 858. We are of the opinion that the statute in. question is in derogation of the constitution and void as not 'being within the police power of the legislature and coming \within the category of laws known as class legislation

The relator will therefore be discharged.

From this opinion Judge Stein dissents, except upon the questions arising under the commerce clause of the Federal .constitution and the right of the state to legislate in relation to the national flag.

NOTE.

Validity of laws prohibiting the use of the United States flag for advertising purposes.

In Ruhstrat v. People, 185 Ill. 133 (1900) the Illinois Act of 1899, known as the “Flag Law” prohibiting under penalty the use of the national flag or emblem for advertising purposes, was held unconstitutional as an arbitrary invasion of the personal rights and lib•erties of a citizen.

In People ex rel. v. Van de Carr, 178 N. Y. 425, 70 N. E. 965 (1904) a similar law was declared unconstitutional, the court relying upon the decision in Ruhstrat v. People, 185 Ill. 133.

But in Halter v. State, 105 N. W. 298 (Neb. Oct. 1905) a “Flag Law” prohibiting the use of the national flag or emblem for advertising purposes was upheld as constitutional, the court expressly disapproving and refusing to follow the decision of the Illinois supreme court in Ruhstrat v. People, 185 Ill. 133 (1900).

       The Illinois statute in question is as follows:
      “An act to prohibit the use of the national flag or emblem, for any ■commercial purposes or as an advertising medium.
      Section 1. Be it enacted by the people of the State of Illinois, represented in the General Assembly: That it shall be unlawful for any person, firm, organization or corporation to use or display the national flag or emblem, or any drawing, lithograph, engraving, daguerreotype, photograph or likeness of the national flag or emblem, as a medium for advertising any goods, wares, merchandise, publication, public entertainment of any character or for any other purpose intended to promote the interests of such person, firm, corporation or organization.
      Section 2. Nothing in this act shall be construed as affecting either public or private exhibitions of art, or shall in any way restrict the use of the national flag or emblem for patriotic purposes.
      Section 3. All prosecutions under the provisions of this act shall be brought by any person or persons violating any of the provisions of this act, before any justice of the peace of the county in which such violation is alleged to have taken place, or before any court of competent jurisdiction; and it is hereby made the duty of the state’s attorney to see that the provisions of this act are enforced in their respective counties, and they shall prosecute all offenders on receiving information of the violation of any of the provisions of this act; and it is made the duty of the sheriffs, deputy sheriffs, constables and police officers to inform against and prosecute all persons whom there is probable cause to believe are guilty of violating the provisions of this act; one-half of the amount recovered in any penal action under the provisions of this act shall be paid to the person filing the complaint in such action, and the remaining one-half to the school fund of the county in which the said conviction is obtained.
      ' Section 4. All prosecutions under this act shall be commenced within six months from the time such offense was committed, and not afterwards.
      Section 5. Any persons violating the provisions of this act shall ne deemed guilty of a misdemeanor, and upon conviction, shall be punished by a fine of not less than $10.00 nor more than $100.00 and costs, and in default of payment of said fine and costs imposed shall be imprisoned in the county jail at the rate of one day for each dollar of fine and costs imposed.
      Approved April 22, 1899.
      (Laws of Illinois, 1899, page 234.)


author: Tuley, J.

text:
      (Circuit Court of Cook County.)

    People of the State of Illinois ex rel. Greeley vs. William B. Porter, et al.
    (March 28, 1899.)
    1. Petition fob Leave to File an Information in the Nature of Quo Warranto—Practice, Where State’s Attorney Refuses to Allow the Use of His Name in Presenting the Petition. Where under the statute of quo warranto it is provided .that a petition for leave to file an information in the nature of a quo warranto in the name of the people may be filed by the state’s attorney of his own accord or at the instance of an individual relator, and the state’s attorney refuses to allow the use of his name in presenting such petition, held that so far as the private rights of the relator are concerned, the use of the name of the state’s attorney is a mere matter of form, a mere fiction which has come down from the English law, and that the proceeding should he dismissed so far as the rights of the people are concerned, but retaining the jurisdiction so far as the rights of the relators are concerned.
    2. Quo Waebanto Peopeb Remedy to Test Legality oe School Distbict. Quo warranto is the proper proceeding to test the legality of a school district and the right of the alleged board of education thereof to levy taxes.'
    Petition for quo warranto, Circuit Court, Cook County, Gen. No. 193,133. Heard "before Judge Murray F. Tuley.
    For statement of facts see opinion.

      L. M. Greely, attorney for petitioner.

      W. F. Struclcman, attorney for certain defendants.
   Tuley, J.

The petition in this case is under the statute of quo warranto, chapter 112, which provides that the attorney-general ■or the state’s attorney of the proper county, either of,his own accord or at the instance of any individual relator, may present a petition to any court of record of competent jurisdiction for leave to file an information in the nature of a quo warrmto in the name of the people, in such court, and if such court shall be satisfied that there is probable ground for the proceeding, the court may grant the petition and order the information filed.

The petition was filed with a direction to the relators to notify the state’s attorney that he show cause why the court should not order the information filed as prayed for, it having been suggested to the court that application had been made to the state’s attorney for the use of his name in presenting the petition and that he had refused to permit such use of his name.

The relators are taxpayers who seek relief, among other things, against the attempted levy of taxes by the alleged board of education of the said joint high school district. There can be no question but that the proceeding by quo warranto, where it is sought to call in question, as in this case, the right of officials to levy taxes and thereby injure the private property of relators, is in fact a civil proceeding, although in form criminal, and that the proceeding by quo warranto is the' proper proceeding to test the legality of the school district referred to and the right of the alleged board to levy taxes, therefor.

The supreme court has decided that a taxpayer cannot raise the question as to the illegality of the school district and obtain relief by injunction in a court of equity, nor can he make that defense upon application for a judgment for taxes levied by authority -of a de facto board exercising the taxing powers for the district; that his only remedy is by proceeding by quo warranto. Renwick v. Hall, 84 Ill. 162; Keigwin v. Drainage Commissioners, 115 Ill. 347; Trumbo v. People, 75 Ill. 561.

The refusal of the state’s attorney to present the petition or allow his name to be used in connection therewith raises the question, whether or not the court has the power to grant the petitioner leave to file the petition on the information notwithstanding the objection of the state’s attorney.

This question has never been decided in this state, and this is the first case in my long experience on the bench in which any state’s attorney ever refused to permit the use of his name in a quo warranto proceeding to an individual seeking, as relator, to redress, or prevent, a private injury.

The state’s attorney showed cause why he refused to file the petition or allow the use of his name in connection therewith, and moves to set aside the order allowing the petition to be filed and to dismiss the same. The cause shown by the state’s attorney in substance is, that he has examined the relator’s complaint as to the illegality of the high school district organization and became satisfied that the public interest did not require any attack upon the validity of the high school district, and that petitioner’s objection to the legality of the proceedings organizing the district, were technical and without merit; also that in the discharge of his duty as state’s attorney and in the exercise of the prerogative of his office, he had refused to file the petition, or to give leave for the use of his name in the proceedings.

There appears to be no reason to question the good faith of the state’s attorney in his refusal, but his contention that as state’s attorney he must determine for himself and is accountable to no judge or court for his decision whether he will institute or discontinue proceedings wherein the people have an interest, cannot be sustained. If it could be, this petitioner, appealing to a court of justice for relief against taxes assumed to be levied by persons assuming legal powers, finds the state’s attorney barring his way and refusing him entrance to the court. If he can do this in one case, he can do it in any and- can keep any person in office whom he may desire, without regard to whether such person is legally entitled to the office or not.

It is not a question of the good faith of the state’s attorney, and if his position is correct, it is immaterial whether he acts in good faith or bad faith. He contends it is for him and not for the court to decide whether this relator shall have his petition for redress entertained by the court or not.

The state’s attorney is an officer of the court and neither he nor any other officer of the court, when it relates to the individual rights of suitors, shall be heard to say that he has more power than the court itself. He does not carry the key of the court room in his pocket to admit whomsoever he pleases. The law requires a relator in a case like this at bar to give-security for costs. The relator alleges he has employed his: own attorney to attend to the case and he only asks the nominal use of the name of the state’s attorney.

It is true that the statute provides that the state’s attorney or attorney-general may present, at the instance of a private relator, a petition for leave to file an information in the name of the people. But so far as the private rights of the relator are concerned, the use of the name of the state’s attorney or attorney-general is a mere matter of form, a mere fiction which has come down to us from the English law, and is of no more use in determining the rights of the relator, or of other parties interested, than had the use of the names of John Doe and Richard Roe in the old form of the action of ejectment.

I am of the opinion that as a matter of right the relator had a right to present this petition to the court and that it is a matter of sound judicial discretion, whether the leave to file the information should be granted or not.

Spelling, Extraordinary Relief, see. 1867, after reviewing the different decisions, says: “In Wisconsin, Iowa, and probably other states, the discretionary control of the court over the proceedings continues throughout the proceeding, and the information may be dismissed at any stage, the practice being analagous to that under the statute 9th of Ann, under which the matter is at all times under the control of the court.” Our statute of 1845 was substantially that of the 9th of Ann. People v. Ridgley, 21 Ill. 64; and People v. Waite, 70 Ill. 25.

The present revised statute of 1871, while the more comprehensive and sweeping in some respects, is substantially like that of 1845, so far as the rights of a private relator are concerned. Under the English decisions the 9th of Ann was held “to let in every person who desired it to make use of the king’s name in actions of quo warranto, and that the act did not leave it to the discretion of the crown officers but put it in the discretion of the court. Cole, Criminal Information, p. 125, and cases cited bearing on the same question. See Commonwealth v. Swank, 79 Pa. St. 154. The taxpayer was held entitled to the writ to test the election of members of a board of assessment. State v. Hammer, 42 N. J. Law 435.

Our own supreme court draws a distinction between a proceeding in quo warranto to enforce public rights and one to enforce private rights, and although there are no decisions directly in so many words that declare a relator has a right to the writ without the consent of the state’s attorney, or without the use of the name of the state’s -attorney, it is fairly infer-able from the decisions that such right does exist. People v. Boyd, 132 Ill. 60; People v. North Chicago Railway Company, 88 Ill. 537; People v. Bruennemer, 168 Ill. 482. In the latter case, which was a quo warranto proceeding to declare the illegality of a high school district, the court held that'the action of quo warranto is a purely civil one, citing People v. Shaw, 13 Ill. 581; Ensminger v. People, 47 Ill. 384, and People v. Boyd, 132 Ill. 60.

It is contended, however, hy the state’s attorney that the public interests, as well as private interests, are involved in this litigation. In the state of Wisconsin, Attorney-General v. Barstow, 4 Wis. 567, a similar question arose, and the court there held, on a motion by the attorney-general to dismiss the proceeding, that the proceeding would be dismissed so far as the rights of the people were concerned, but would be retained so far as necessary to give relief to the relator in his individual right.

I am satisfied that this court has jurisdiction to give the relator the relief prayed for, assuming the facts in the petition to be true, even though in granting that relief the interest of the public might be directly or indirectly affected, and that the court can do this notwithstanding the objection of the state’s attorney.

An order may be drawn dismissing the proceeding so far as the rights of the people are concerned, but retaining the jurisdiction, so far as the private rights of the relators are concerned. The order may provide for the filing of the information in the name of the people by the state’s ^ttorney on the relation of the relators, or without using the name of the state’s attorney as may be desired, the order to be drawn in accordance with the views expressed, and a copy thereof to be submitted to the members of the board and the state’s attorney before presenting the same for entry.

This method of proceeding may produce some complications, but I have no doubt of the power of the court to adjudicate at the suit of the relators as to the right of Porter and the other defendants to act as members' of the alleged board of education and to certify taxes to be collected from relators’ property. If the interests of the people suffer thereby, it may be because the state’s attorney refuses to have the people represented in the case.


author: Tuley, J.: Moran, J.:

text:
      (Circuit Court of Cook County. In Chancery.)

    The Public Grain and Stock Exchange vs. The Western Union Telegraph Company and Board of Trade, et al. The Public Grain and Stock Exchange vs. Baltimore and Ohio Telegraph Company, et al.
    (1883.)
    1. Monopolies—Destruction of Competition. Neither the establishing of monopolies nor the destruction of competition are: looked upon with favor by the courts.
    2. Telegraph Companies Furnishing Market Quotations— Whether Affected With a Public Use. Where a telegraph company as incident to its regular telegraph business procures; market quotations on the- board of trade and circulates such quotations over “tickers,” such incidental business is affected with a public use, and the quotations must be furnished to all alike without discrimination. '
    3. Same—Bucket Shops—Equitable Aid. Where the complainant seeks to compel the defendant to furnish it market quotations and it is made to appear that such quotations are desired for the purpose of conducting a “bucket shop” or any other illegal business, a court of equity will not lend its aid for any such purpose. But before relief is denied there must, be proof of such fact and not mere suspicion.
    4. Board of Trade—Rules of. Neither the courts nor the legislature can interfere with the actions of the board of trade as-to the control of its own floor or the discipline of its members, but the business transacted upon the floor of the board of trade, is “affected with a public interest” to an extent which would authorize the legislature or the courts to prohibit such board from exercising any discrimination as to who shall receive its-market quotations, or as to what telegraphic companies shall be allowed facilities for distributing the information to the; public.
    5. Right to Receive Market Quotations—Order of Third Persons no Excuse. Where a telegraph company receives market quotations from the board of trade and the public are entitled to-receive such quotations without discrimination, the court will compel the furnishing of such quotations to complainant even. though, the board of trade, having power to dictate to the telegraph company, has instructed such telegraph company not to furnish the quotations to complainant. If the telegraph company obtains the quotations from any source and sends them to others they must send them to all.
    '6. Common Carriers—D'utyx to Serve All—Contract With Third Person no Excuse. A common carrier cannot refuse to carry for one person because another person does not desire him to, or because the carrier is under contract not to do so.
    7. Public Use—-When Property Becomes Affected With. Property becomes affected with a public interest and subject to control for the common good when used in a manner to make it a public consequence and affect the community at large.
    S. Common Carriers—Origin of Duty of. The liabilities of common carriers were originally determined by the usages of trade, and the opinions of the judges predicated upon the obligations they assumed., and the nature of their business.
    ■9. Common Law-—Principles of. The public welfare is the great and final test in matters at common law.
    10. Equity—Expansion of Doctrines of. The system of equity is so constructed upon comprehensive and fruitful principles that it possesses an inherent capacity of expansion so as to keep abreast of each succeeding age and generation.
    11. Public Service Corporations—Discrimination—Remedy Against. Where a public service corporation discriminates in its dealings with the public there is no remedy at law, and a court of equity will exercise jurisdiction and issue a mandatory injunction to prevent such discriminations.
    Motion to dissolve injunction in two cases. Gen. No. 43,416 and Gen. No. 43,415. Heard respectively before Judge Murray F. Tuley and Judge Thomas A. Moran.
    For statement of facts see opinion.

      A. B. Jenks, solicitor for complainants; Leonard Swett, Lyman Trumbull and W. G. Gouck) of counsel.

      Williams & Thompson, solicitors for Western Union Telegraph Co. G. G. Clarke, solicitor for B. & 0. Telegraph Co. G. Beckwith and A. B. Wilson, solicitors for Board of Trade of the City of Chicago.
   Opinion in First Case.

Tuley, J.:

This bill is filed by the complainant to restrain the defendant telegraph companies from removing from its place of business three “tickers,” and two Morse instruments placed there by the defendant companies, and to restrain them from cutting off and withdrawing from the complainant at their place of business information as to the market value of grain, provisions, stocks and other merchandise, upon the ground that the telegraph companies are the servants of the public, and under a duty by law which forbids them so acting.

It appears that the Western Union Telegraph Company obtained from the other defendant the right to use the “tickers” and placed the instruments in question in complainants ’ ‘ ‘ place of business.” The “tickers” are used for printing automatically upon a slip of paper the quotations of the market of the board of trade of Chicago and other centres of exchange, and the arrangement is such that the printing is exhibited to all the offices and places of business containing such instruments, at the same instant of time.

In this city a circuit is made from the board of trade, with the wires of which circuit the “tickers” and Morse instruments are both connected, so that all persons having such instruments may secure the quotations at the same moment.

The Western Union Company has a department of its business in operation for several years past known as “the Commercial News Dispatch Department. ’ It has its agents upon the floor of the board of trade of this city, and of other exchanges at all the large commercial centers of trade throughout the country, and collects information as to the state of and fluctuations of the market at the different centres. This it transmits from one centre to the other, and to all the persons having such instruments in their places of business, so that, for example, in the city of Chicago, all such persons on the line of the circuit receive not only the quotations of the foreign markets, but also the quotations showing the fluctuations—at the instant they occur—of the market on the board of trade of Chicago, New York, Philadelphia, and the other large business centres of the United States. This business has been built up by the telegraph company as its answer alleges, “as an incidental branch of its regular telegraph business.”

The telegraph company insists that this “commercial news dispatch business,” is private business of the company; that it is ultra vires its powers as a corporation, and therefore that it can furnish this commercial news and these instruments to, and withhold the same from any person it pleases. That as to that business it is not under the same obligation; as it is, —in its relation to the public, in regard to what it terms its regular business, to-wit, to treat all persons offering to do business with it alike, and without discrimination. If this position is a tenable one, it is fatal to complainants’ case.

It is true that when telegraphy was first introduced, and when the Western Union Telegraph Company was chartered, its business was confined to sending messages over its wires, but since then great and wonderful changes in the methods of transacting commercial business have taken place, and no instrumentality has been so potential in bringing about these changes as the telegraph.

As said by Chief Justice Waite, in 1877, in the case of Pensacola Telegraph Company v. Western Telegraph Company, 96 U. S. 1: “The electric telegraph marks an epoch in the, progress of time. In a little more than a quarter of a century it has changed the habits of business and become one of the necessities of commerce: it is indispensable as a means of inter-communication, but especially so in commercial transactions. The statistics of the business before the recent reduction in rates showed that more than eighty per cent, of all the messages sent by telegraph related to commerce. Goods are sold and money paid up on telegraphic orders. Contracts are made by telegraphic correspondence, cargoes secured, and the movement of ships directed. The telegraphic announcements of the markets abroad regulates prices at home, and a prudent merchant rarely enters upon an important transaction without using the telegraph freely to secure information.”

The fact that such a large per cent, of all messages relate to commerce, may have suggested to the telegraph company that it might supply this demand for information as to the state of market to its own profit, and the convenience of the public by establishing in connection with its other business this commercial news department. Whatever may have been the inducement it did establish that branch of business, and for years past it has been gathering the market quotations at all the large commercial centres, and transmitting them to its patrons at all such centres; so that we find its “tickers” and Morse instruments in hotels, banks, commission merchants' and brokers’ offices, billiard and bar rooms, everywhere, in fact, that the interests of the public seems to require them, either as a convenience or a necessity. The parties who use this news and these instruments, and they form a very large number of the persons engaged in trade, “choose a subtle fluid for their agent, and by quiclmess and accuracy beat down competition.” The value of the information-which they demand depends upon the time, the day or the hour or minute, perhaps, that they may receive it.

The telegraph company admits that it has been furnishing complainant with these market quotations; that it is about to discontinue the same and remove the “tickers” and Morse instruments from complainant’s place of business, and alleges as a reason for its contemplated action that it obtains its quotations or news as to the Chicago market by means of agents on the floor of the Chicago board of trade; that it has been notified by the managers of the board of trade that if it does not discontinue sending market quotations to what are known as “bucket-shops,” its agents will be prohibited access to the floor of the board, and not allowed to collect any market quotations or other commercial news; and that complainant carries on a “bucket-shop,” which is a place used for gambling upon the future prices of grain and other commodities.

If the complainant has a right to these market quotations, it is no concern of the telegraph company or of the board of trade as to what use it makes thereof, but a court of equity— whether the fact is set up as a defense or not—when it is made to appear that a complainant is seeking its aid to protect an immoral business like gambling, or a business prohibited by law, will not lend its assistance for any such purpose, but will dismiss the complainant’s bill, and leave him to his remedy at law, if any he has. In this case,- however, there is no proof that the complainant is engaged in any other than a legitimate 'business. The only evidence tending at all in that direction being that “bucket-shops” always “take the deal” or trade, and that this complainant does the same, but this is neither more nor less than every member of the board does in every case where as broker he buys or sells on the floor of the board.

The board 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 contributing to the support of the board.” It is competition— not immorality, which the board of trade is seeking to put down.

It is evident that if the managers can dictate that the quotations shall not be furnished this complainant, they may cut •off from receiving the same, every merchant, commission-house, broker, banker, or other persons outside the board; and might, if they thought proper, dictate that only one man in New York, say Jay Gould or Keene should be permittted to receive them by telegraph.

In such case there would 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 place, and what gigantic monopolies might be built up in commercial centres, where values are determined by the ruling prices on the Chicago board of trade.

Neither the establishing of monopolies nor the destroying of competition is looked upon with favor by the courts.

The corporation known as the Chicago board of trade was organized more than a quarter of a century ago by a few merchants of this city for their own convenience in the transaction of their business. By reason of the wonderful development of the country tributary to Chicago as a commercial centre, the business done upon the floor of this board of trade has become a great and controlling factor in fixing the prices or» value of grain, meats and other commodities, not only throughout the United States, but to some extent in Europe. Millions upon millions of property, consisting principally of wheat, corn and meats—the common necessaries of life, are affected in value daily and hourly by the transactions had upon the floor of this board of trade. So widely extended and important has the influence of the business there transacted been upon the price of grain and provisions; so much is the-public interested in knowing and in ascertaining the results, from hour to hour of that business, that I cannot bring my mind to the conviction that this business, and 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 Munn and Scott warehouse case, ante.

This market on the floor 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 upon four-fifths of the wheat and other products of the great northwest—an empire in itself. These products—such is the course of trade—must, whether the owners desire it or not, pass through this board of 'trade market. A membership of the board, which confers the privilege of participating in the taking of this “toll,” is worth $10,000. It can make no difference-in principle whether this “toll” is taken by the corporation or by the members; 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 floor 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 information to the public.

It is opposed to the very spirit of its charter that it become a monopoly or a close corporation,

I am also of the opinion that even if the board of trade has-the power to dictate to the telegraph companies as to who shall or shall not have the market reports or quotations, and should order (as it is alleged they have ordered) them not to furnish the same to complainant, that it would be no excuse or justification for the telegraph company removing these instruments or refusing to furnish the reports to complainants.

Can a common carrier say that he will not carry for A because B does not desire him to do so, or because he is under-contract not to do so ?

The case of the State ex rel. v. Bell Telephone Company, would appear to be decisive of this point. In that ease the court held that “a public servant,”—as the respondent telegraph company is—“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 invention. 11 Central Law Journal, 359.

To establish any other rule would be to enable common carriers and others occupying as to the public a like position— as we have seen this telegraph company does—to avoid their duty and obligations as public servants.

Such parties are not content to know what was the price of the commodity with reference to which they deal, upon yesterday or last week, but demand the latest market price up to the very instant the business is transacted. It appears tome that there are principles laid down in what are known as the “Express Company cases,” which are applicable to this case.

In those cases, the railroad companies contended that it was no part of their duty as common carriers to carry express matter as such and attempted to discriminate as to express companies.

Judge Baxter, in one of the first of these cases, said, “that no such question could have arisen a half century ago.” He traces the origin and growth of the express business, shows how it has grown “under the fostering care of the railroads,” into a “public necessity,” and how it had “so interwoven itself into the present methods of doing business that it cannot be dispensed with, without producing an abrupt and disastrous revolution in the present mode of carrying on trade.” It was held in those cases that although originally it was no part of the duty of the railroads to carry express matter, yet having done so for so many years, and thereby aiding to build up the express business into a “public necessity,” it had become as much their duty to carry express matter as to carry freight, and the common-law obligation not to discriminate applies to both. See Dinsmore v. L. C. & L. Ry. Co., 2 Fed. 465; Southern Express Co. v. Memphis, etc., R. R. Co., 8 Fed. 799, 13 Central L. J. 68; Southern Express Co. v. St. Louis, I. M. & S. Ry. Co., 10 Fed. 210.

As the express business grew into a public necessity under the fostering care of the railroads, so has the use of the market quotations grown into a public necessity under the fostering care of the telegraph companies. The knowledge of these market quotations, and the possession of facilities for obtaining that knowledge at the instant of trading, have become •a necessity to those engaged in buying and selling stocks, grain, provisions, etc., and has so interwoven itself into the modern method of doing business' that they cannot and will not now be dispensed with. It is profitable to the telegraph companies, useful, convenient and necessary to the public.

Whatever the business may have been when first undertaken by the telegraph companies, it is now no longer a private business. It is general in its nature and has become, under the principles laid down in the Munn and Scott warehouse ease, “affected with a public interest.”

Property becomes affected with a public interest and subject to control for the common good “when used in a manner to make it a public consequence, and affect the community at large.” What is said in that case as to common carriers, may be said of this business carried on by the telegraph company; that “in carrying on their business they have duties to perform in which the public are interested.” Therefore “their business is affected with a public interest within the meaning of the doctrine which Lord Hale has so forcibly stated. ’ ’ Munn v. Illinois, 94 U. S. 113.

Not only did the telegraph companies originate this business but they have furnished facilities for obtaining these market quotations for years past without discrimination, until it has become a public necessity that such facilities and such quotations shall be furnished all who desire them. They will not now be permitted to say that their common-law obligation not to discriminate—attaching to their business of sending messages does not attach to this new “incidental business,” at least so long as they carry it on. To permit them to do so> would be to allow them to commit a fraud upon, and work irreparable injury to, complainant and others, who have engaged in business upon the faith of having these market quotations to aid them in carrying on the same.

The position that legislative action is necessary to impose-these obligations upon the defendants is not tenable.

“The liabilities of common carriers were originally determined by the usages of trade and the opinions of the judges, predicated upon the obligations they assumed, and the nature of their business.” Scott and Jarnagin on Telegraphs, p. 248; Vincent v. Chicago, & Alton Railroad Co., 49 Ill. 33; The Express Co. cases, ante.

I therefore hold that so long as the defendant telegraph companies are permitted to have their agents upon the floor of the board and gather these market reports or quotations and send them to others, they will not be permitted to discriminate against the complainants. If they obtain the same— no matter from what source—and send them to others, they must send them to complainants.

The principles declared in this opinion are not new. They are as old as the time of Lord Hale, who enunciated them more than two hundred years ago. They are simply old rules applied to new facts. It has been well said “that the public welfare-is the great and final test in matters at common law,” -and this is eminently so as regards privileged classes and monopolies. Also that the system of equity “is so constructed upon comprehensive and fruitful principles that it possesses an inherent capacity of expansion so as to keep abreast of each succeeding age and generation.”

The motion to dissolve is overruled, and the injunction will be retained until the final hearing.

Opinion in Second Case.

Moran, J.:

This case I have considered since the arguments, and I have not been able, from anything I have seen, to change the opinion that I had formed at the time of the arguments—which I, in fact, h°d formed before the arguments were made at all. There have been in this case two motions to dissolve: one made by the board of trade, which was granted on the ground that the board of trade have the right to control their own premises and to permit anybody to come upon them or deny anybody the right to come upon them. At the time I dissolved that motion I intimated that I thought it a very different question with reference to the telegraph company. I still think the telegraph company stands upon an entirely different basis. The telegraph company is in the exercise of a public franchise; it holds itself out according to the allegations of the bill, and these allegations are not denied, to furnish these commercial reports to such persons as agree to its reasonable terms and regulations, and it is in the business of furnishing to such persons as make contracts with it and comply with its reasonable regulations, these commercial reports which it gathers up, attracts into its possession or gets control of by the messengers and agents it is permitted to have upon the floor of the board of trade. Mow, it is said, it must refuse to transmit these commercial reports to the complainant in this case, because the board of trade says it shall do so, and threatens to drive it off the board of trade and deprive it of the facility of obtaining the information unless it complies with that demand. I have never seen how a telegraph company can be permitted, either of its own will or at the command or behest of another party, to discriminate in its service to the public. The theory that it may do this because this is not regular telegraph business—that is, it is not a dispatch signed by one person and handed to the company to be sent to another person, is the narrowest construction that can be given to telegraph business. To say it is in that business, .and that the company need not engage in it if it does not want to, and then to argue from that, because the company might not be compelled, under forfeiture of its charter to engage in transmitting commercial news, that it may distinguish the persons it will transmit commercial news to, seems to me false reasoning. The business of transmitting commercial news has grown to be an exceedingly important business. I suppose it will not be extravagant to say, that it forms a very large part of the business of the telegraph companies as they are run at the present day. That the commercial information that they gather up by their agents at the different commercial •centres, such as the price of grain, the price of stocks, railroad stocks, is most important information to the general public, and to people engaged in different occupations it can be seen at a glance. The business being to a certain extent incidental, is telegraph business in this sense: the company can exercise the power of eminent domain for the purpose of carrying it on; it has the right to condemn my land, or your land, or the land of any other citizen, and put its poles thereon for the express purposes of its business,' and for this purpose alone of transmitting commercial news dispatches. If it exercises the power of eminent domain, it cannot be said that the business for which it exercises it, is special business and they can discriminate as to the persons they will send it to. The rule governing chartered bodies is always to prevent them discriminating against anybody, as that is the most dangerous way of building up monopoly. If the company can discriminate in the sending of commercial dispatches between different persons in a community, it may enrich one man and impoverish .-another one. Now, it does not seem that the law will permit that to be done upon any excuse whatever. The position taken by counsel that a court of equity will not compel a company to transmit to an individual because the telegraph company can be made to supply the public,' has its only support in eases, in which there were no public questions involved at all, but where it was a mere question of private interests. I think this is clearly shown in the case of Hawley v. Beardsley, 47 Conn. 571.

Now one of the distinguishing features of the telegraph company’s business, or of a railway company’s business or of an express company’s business, is that for any attempt to-discriminate there is absolutely no remedy at law. I can conceive no rule under which damages can be claimed. Of late this has been -discovered and recognized all over the country. There is no other way to control these chartered companies, than by an appeal to a court of equity, and the courts of equity have issued these mandatory injunctions to prevent any discriminations at all. Now, there would appear some sort of incongruity in saying that the board of trade may drive anybody off: its floors and still that the company must furnish these dispatches; in my opinion there is none whatever. I do not find it necessary to agree with a recent opinion that the board of trade may be controlled, or compelled to furnish, or let anyone get at its market reports. I do not find it necessary to decide that question one way or another. The board of trade may-shut its doors and windows, and shut off all the ways by which its doings could be got to the public, and conduct its business in secret. That this would be a very bad thing for the board of trade to do I have no doubt. If the board of trade see fit to let the telegraph companies get the news, and the telegraph companies hold themselves out to supply it to all persons who will comply with its reasonable terms and regulations, it cannot give it to one person and withhold it from another. When the news passes from the board of trade to the telegraph companies, it belongs to the telegraph companies, and they must transmit to one person as another. If the board of trade puts the telegraph company off its floor, well and good. It is better that the telegraph company be-prevented from getting the news at all than that it be permitted under any excuse whatever to discriminate against any member of the public who wants to receive their work, and will comply with its reasonable conditions. As I said, if the board of trade puts the telegraph companies off its floors, well and good, the telegraph companies cannot send news they cannot get.

The gambling question is not in this case. It comes here as the case of a perfectly honest institution, carrying on, so far as the evidence before the court shows an honest business, just like any other honest business engaged in dealing on the board of trade. In that case a telegraph company engaged in transmitting commercial dispatches cannot refuse to supply it with such news; and, therefore, I cannot dissolve this injunction.

NOTE.

The same conclusion was arrived at by the supreme court in The New York and Chicago (Train and Stock Exchange v. The Board of Trade of the City of Chicago, 127 Ill. 153.

But in Board of Trade of the City of Chicago v. Christie Grain and Stock Company, 198 U. S. 236, it appeared that the Board of Trade collected at is own expense quotations of the prices offered and accepted, for wheat, corn and provisions in its exchange, and distributed them under contract to persons approved by it and under certain conditions. In a suit brought by it to restrain parties from using the quotations obtained and used without authority of the-Board, defendants contended that as the Board of Trade permitted,, and the quotations related to, transactions for the pretended buying of grain without any intention of actually receiving or paying for the same that the Board violated the Illinois bucket shop statute and that there were therefore no property rights in the quotations which the court could protect, and that the giving out of the quotations to certain persons makes them free to all. It was held that even if the pretended buying and selling is permitted by the Board of Trade it is entitled to have its quotations protected by the law, and to keep the work which it has done to itself, nor does it lose-its property rights in the quotations by communicating them to-certain persons, even though many, in confidential and contractual relations to itself, and strangers to the trust may be restrained" from obtaining and using the quotations, by inducing a breach of the trust.—Ed.

       See Jones on Telegraph and Telephone Companies, p. 41.—Ed.

       But see The Express Cases, 117 U. S. 1.—Ed.

       De Jure Maris, 1 Harg. Law Tracts, 6, 78; De Portibus Maris, 1 Harg. Law Tracts, 78.—Ed.


author: Tuley, J.:

text:
      (Circuit Court of Cook County. In Chancery.)

    Public Grain & Stock Exchange vs. Western Union Telegraph Company.
    1. Equity Practice—Matter of Defense Arising After Issue Joined—How Raised. A new defense arising after issue joined upon answer filed should be brought before the court by means of a cross-bill in the nature of a plea puis darrein continuance.

    2. Same. There are cases, however, where the new matter has been permitted to be brought in by supplemental answer.
    3. Same—When Immaterial How Defense Presented. In many cases it would be immaterial whether new matter is brought before the court by supplemental answer or cross-bill, as for instance, where a release has been obtained after answer filed and the only question raised is as to the fact of execution.

      4. Same—New Matter Arising After Issuance of Injunction Which Would Cause Dissolution of Same Can Only be Raised by Cross-bill. Where an answer has been filed, issue joined and a motion to dissolve an injunction based upon such answer has been overruled, it would not be correct practice to permit a defendant to come in and set up new matter by means of a supplemental answer, where such new matter would defeat or avoid the injunction. The proper practice is to file a cross-bill.
    5. Public-Service Corporations—Right of Telegraph Company to Discriminate in Distribution of Board of Trade Quotations—■ Collusion With Board of Trade—Parties. Complainant filed its bill to enjoin the defendant from removing certain “tickers’’ from its place of business and from discriminating against it in furnishing board of trade market quotations gathered by the telegraph company on the floor of the board of trade. An injunction was issued, an answer filed and a motion to dissolve based.on such answer, overruled. The telegraph company thereafter filed a supplemental answer to the effect that it was only able to gather the quotations on the floor of the board of trade with the consent of the directors of such board, that such directors had forbidden the defendant to supply the quotations to “bucket shops’’ and that complainant carried on such a shop. , The evidence as to complainant carrying on a bucket shop was not sufficient to establish that fact. Held that the defendant could not set up such new matter in a supplemental answer where there is no allegation that there has been no collusion between the telegraph company and the board of trade, and unless the board of trade was made a party to the proceeding.

      6. Parties—Who Are Necessary in Bill to Compel Telegraph Company to Furnish Complainant With Market Quotations of Board of Trade. Where a bill is filed to compel a telegraph company to furnish market quotations of the board of trade, gathered by the telegraph company on the floor of such board, and it is averred that the board of trade claims such quotations as its private property and has forbidden the telegraph company to furnish the same to complainant, such board has a direct interest in the litigation and is therefore a necessary party to the suit
    7. Supplemental Answer—Bringing in New Parties by. No person can be brought into a casé by supplemental answer. It must be done by cross-bill.
    Motion of complainant to strike supplemental answer from files and motion of defendant to dissolve or modify the injunction. Heard before Judge Murray F. Tuley.
    For statement of facts see prior decision in same case, 1 Ill. C. C. 548, supra.

   Tuley, J.:

Whether or not the complainant is engaged in the business of running a bucket shop is not now before the court. The questions now to be passed upon arise upon the following state of the pleadings:

The complainant filed its bill to enjoin the Western Union Telegraph Company from removing certain telegraphic instruments and “tickers” from its place of business which the telegraph company had placed there in carrying on the business of furnishing the dispatches to all members of the public who were willing to pay its customary charges therefor.

The telegraph company answered the bill, claiming that it was under no legal obligation not to discriminate as to the persons to whom it should furnish these commercial news dispatches and market quotations of the Chicago board of trade and other centres of exchange, and that it was only able to gather the quotations and commercial news of the Chicago board of trade on the floor of the board by the sufferance of its board of directors, and subject to such conditions as the directors might impose; that the directors had forbidden the telegraph company to send these news dispatches and quotations to “bucket shops;” that the complainant carried on such a shop and fell within the prohibition.

Upon a motion to dissolve the injunction which had been granted against the telegraph company, this court held, in substance, that the evidence submitted by the telegraph company—one affidavit, I believe,—was insufficient as against the numerous affidavits of complainant to show that complainants carried on a bucket shop. That the telegraph company had no power to discriminate as against complainant in the delivery of these quotations and commercial news, and that so long as the telegraph company continued in the business of gathering and delivering such news dispatches and quotations, it was bound to furnish the same to complainant upon the same terms and in the same manner that it did to other persons.

The motion to dissolve the injunction was overruled. Some months thereafter, the telegraph company, upon petition filed, prayed leave to file a supplemental answer. The leave was granted without argument upon a stipulation of the parties, that upon a motion to strike the same from the files, the same questions might be presented as could have been upon the petition for leave to file the same.

The complainant now moves to strike the supplemental answer from the files, and the telegraph company moves that the injunction be dissolved or modified. The substance of the supplemental answer is, that after the court overruled the motion to dissolve the injunction, the Chicago board of trade notified the telegraph company that it would no longer be permitted to gather the market quotations and news upon the floor of the board; that the board itself would gather and control the same, but that an arrangement might be made concerning the gathering and distributing such news and quotations.

That thereupon a certain agreement was made between the board of trade and the telegraph company on the 23d of April, 1884, which was in substance: That the board was to gather by its own agents these market quotations and deliver the same to the telegraph company, and the company to send the same as private dispatches only to such approved correspondents as the board of trade (or its committee) might designate from time to time, and to such persons as the telegraph company might contract with, subject to the approval of the board; the telegraph company to, collect from the parties receiving the same, in addition to the charges for telegraphing, an amount sufficient to pay the expense of gathering such dispatches, and out of such collections to pay the board of trade ■one thousand dollars per month, retaining the balance, if any, in its own hands, the board of trade to have the right to cut off any person from receiving such quotations and news at any time with or without cause, and with or without notice. The agreement could be terminated upon thirty days’ notice.

The first question which arises is one of chancery practice, and is, whether or not new matter arising after issue joined upon answer filed and after overruling a motion to dissolve an injunction based upon such answer, can be brought before the court by means of a supplemental answer?

The complainant contends that such new matter can only be brought into the pleadings by means of a cross-bill in the nature of a plea ptiis darrien continuance, while the telegraph company contends that it may be done by a supplemental answer.

That a new defense arising after issue joined upon answer filed should be brought before the court by means of a cross-bill in the nature of a plea puis darrien, is laid down as the correct practice in Mitford, Equity Pleadings, p. 72; Lubes, Equity, p. 309; Story, Equity Pleadings, sec. 393; Adams, Equity, p. 402; Taylor v. Titus, 2 Edward’s Chancery, 135. Numerous cases are cited by the authors named to sustain the text.

To sustain the position of the defendant, Anonymous, Hopkins’ Chancery, 30, Stamps v. Birmingham and Stour Valley Ry. Co., 2 Phillips Chancery, 673; Southall v. The British Mutual Life Assurance Society, 38 Law J. Ch. 711, and other cases are cited, as showing that new matter has been permitted to be brought in by supplemental answer.

I am of the opinion that in many cases it would he immaterial whether the new matter was brought before the court by supplemental answer or by cross-bill, as for instance, where a release had been obtained after answer filed and the only question made should be upon the fact of its having been executed. But where an answer has been filed, issue joined and a motion to dissolve an injunction based upon such answer has been overruled, it would not be correct practice to permit a defendant to come in and set up new matter of this kind by means of a supplemental answer for the reason, first, because neither the petition filed nor the supplemental answer itself contains any averment that there has been no collusion between the telegraph company and the board of trade, as to the' new matter set out, for the purpose of defeating or avoiding the injunction pending in this case. I know of no way that the complainant can make an issue of that kind upon new matter set forth in a supplemental answer. Special replications are no longer used or permitted; second: It would not be correct practice because the new matter set up shows, that the board of trade, claiming to own the quotations and news as private property, has a direct interest in the questions raised by the supplemental answer and is therefore a necessary party. No person can be brought into a case by way of' supplemental answer, but by a cross-bill it may be done.

The board of trade is not a party to this litigation. It is not bound by any order or decree made or to be made herein. It would be manifestly improper for me to pass upon the grave questions presented by this answer and in which it has such a great interest without the board being first made a party to-this litigation.

The motion to strike the supplemental answer from the files; will be sustained. The motion to dissolve the injunction necessarily fails and will be overruled unless defendant wishes to-withdraw the same.