CASES ARGUED AND DETERMINED IN THE UNITED STATES CIRCUIT COURTS OF APPEALS. 123 Fed. 411.) SULLIVAN v. POSTAL TEL. CABLE CO. et al. (two cases). Nos. 961, 972. 1. APPEAL FROM INTERLOCUTORY ORDER-DIMISSAL-ENTRY OF FINAL DECREE. An appeal from an interlocutory order granting an injunction will not be considered after a final decree has been entered in the cause, and the question of costs is the only one involved. 2. EXCHANGES-MARKET QUOTATIONS-RIGHT TO IMPOSE CONDITIONS ON PERSONS RECEIVING. A board of trade and telegraph 'companies transmitting and selling the quotations from its exchange have the right to make reasonable regulations for the conduct of the business, and a regulation requiring all customers, as a condition to being furnished with quotations, to sign an agreement that they will not use the same in conducting a bucket shop, is reasonable, and may be enforced. Appeals from the Circuit Court of the United States for the Northern Division of the Northern District of Illinois. C. Stuart Beattie, for appellant. H. S. Robbins, for appellees. Before GROSSCUP and BAKER, Circuit Judges, and ANDERSON, District Judge. PER CURIAM. These two causes were argued and submitted together. The first is an appeal from an order granting a temporary injunction, and the second from a final decree for a perpetual injunction against the appellant's using the quotations of the Chicago Board of Trade, distributed by the appellees under contracts with the board. In the first case the appeal is dismissed. The interlocutory decree became functus officio upon the entering of the final decree. An ap¶ 2. See note at end of case. 61 C.C.A.-1 peal will not be entertained simply to determine a question of costs, when the question at issue has become moot. The decree in the second case is affirmed upon the authority of National Telegraph News Company v. Western Union Telegraph Company (C. C. A.) 119 Fed. 294,1 and Illinois Commission Company v. Cleveland Telegraph Company (C. C. A.) 119 Fed. 301.2 The bill in this case is substantially a copy of the bill in Illinois Commission Company v. Cleveland Telegraph Company, supra; and the evidence establishes that the appellant was engaged in purloining the quotations and was threatening to continue and asserting his right to continue. The answer sets up, as a justification or an excuse, that the appellant had offered to pay the same charges that were made to other patrons of the Board of Trade and telegraph companies, and to comply with all regulations that the appellees might lawfully exact. The bill, however, shows that the board and telegraph companies had established, as a regulation for the conduct of the business of supplying quotations, a rule that all applicants should sign an agreement in which they covenanted, among other things, not to engage in bucketshopping. The appellant has failed to comply or to offer to comply with that regulation, and challenges the right of the appellees and the Board of Trade to require compliance with such a rule. Without deciding, but merely assuming arguendo, as was done in Illinois Commission Company v. Cleveland Telegraph Company, that the property right of the Board of Trade is impressed with a public use, and that the board and the appellees, as agencies through which the quotations are distributed, must serve without discrimination all who apply, there yet remains the right of the board and the appellees to establish reasonable regulations for the conduct of the business. And so the only question is whether or not it is a reasonable regulation to require the applicants to sign the contract referred to. In the Illinois Commission Company Case we held that this was a reasonable requirement: NOTE. Quotations of Prices and Transactions on Exchanges. [a] (U. S. C. C. A., Ill., 1902) A telegraph company which by contract with the Board of Trade of Chicago is furnished by such corporation with the continuous market quotations from its exchange, for which the company pays, and which it transmits and distributes to patrons who pay therefor, has a property right in such quotations, which entitles it to protection by injunction restraining others, who are not its patrons, from taking the same from its wires or from the offices of its patrons, and selling or distributing them in competition.-Illinois Commission Co. v. Cleveland Tel. Co., 119 Fed. 301, 56 C. C. A. 205. [b] (U. S. C. C. A., Mo., 1903) The Board of Trade of Chicago is not entitled to invoke the aid of a court of equity to protect its claimed property right in the quotations made on the transactions of its exchange, under proof which shows that at least 85 per cent. of such transactions are deals in which it is not intended to make a future delivery of the article nominally dealt in, but which are to be settled by the payment of money only according to the fluctuations of the market, and that for a specified price it furnishes such quotations to telegraph companies for distribution as a means of encouraging speculation in futures, and for the purpose of bringing such business to its members; both 156 C. C. A. 198, 60 L. R. A. 805. 2 56 C. C. A. 202. the permitting of such transactions, and the sending out of such quotations for the purpose stated, being in violation of the statutes of the state, as construed by its Supreme Court. Decree, Board of Trade of City of Chicago v. Christie Grain & Stock Co. (C. C.) 121 Fed. 608, reversed.-Christie Grain & Stock Co. v. Board of Trade of City of Chicago, 125 Fed. 161, 61 C. C. A. 11. [e] (U. S. C. C., Ill.,1883) A board of trade, composed of merchants dealing in the products of the country, who solely for their own convenience provide a room where they meet to transact business, although incorporated under the laws of the state, is not a public corporation, and is not obliged to allow the reporters of a telegraph company on the floor of its exchange for the purposes of collecting and transmitting the reports of the markets therefrom.— Metropolitan Grain & Stock Exchange v. Chicago Board of Trade (C. C.) 15 Fed. 847. [d] (U. S. C. C., Ill., 1884) The Chicago Board of Trade has the right to decide to what persons besides its own members the telegraphic reports of its dealings, collected by its own employés, shall be distributed.-Marine Grain & Stock Exchange v. Western Union Tel. Co. (C. C.) 22 Fed. 23. [e] (U. S. C. C., Ill., 1900) There exists in the board of trade of the city of Chicago a right of property in the quotations made upon the transactions of its exchange until the same are made over to the public, and it is within the powers of the board to convey such right by contract to a third person, who is entitled to protection in the enjoyment of the same before publication by injunction against the unauthorized publishing or distributing of such quotations by others.-Cleveland Tel. Co. v. Stone, 105 Fed. 794. [f] (U. S. C. C., Ind., 1903) Conceding that the Board of Trade of the City of Chicago has a property right in the quotations of prices made on its exchange, based on legitimate transactions, it is not entitled to invoke the aid of a court of equity for the protection of its right in its quotations under evidence showing that something like 95 per cent. of the contracts made on its exchange are for the sale of commodities for future delivery, and are closed immediately after the transaction by a settlement of differences between its members, per· mitted by its rules, and made with its knowledge and consent at the close of each day's business.-Board of Trade of City of Chicago v. L. A. Kinsey Co., 125 Fed. 72. [g] (U. S. C. C., Mich., 1903) Where defendants, sued to restrain their use of board of trade quotations, deny such use, and show that they obtain the same quotations from another source, and issues are made or can readily be forced by complainant so as to procure a speedy final hearing, a preliminary injunction will be refused.-Board of Trade of Chicago, Ill., v. Ellis, 122 Fed. 319. [h] (U. S. C. C., Mich., 1903) Where a District Court of the same circuit has refused a board of trade an injunction to restrain the use of its quotations by bucket-shops on the ground that it is a too nearly similar concern, a preliminary injunction, sought for the same purpose, will be refused until the ruling has been reviewed by the Circuit Court of Appeals.-Board of Trade of Chicago, Ill., v. Ellis, 122 Fed. 319. [i] (U. S. C. C., Mich., 1903) The fact that defendant receives quotations not from the complainant board of trade, but from an "open board of trade," the quotations of which are so sympathetic that in a few moments they are identical with those of the complainant, will not warrant a preliminary injunction. -Board of Trade of Chicago, Ill., v. Ellis, 122 Fed. 319. [j] (U. S. C. C., Mo., 1902) The rules of the Board of Trade of the City of Chicago prohibit gambling transactions on its exchange, and impose upon both parties to a sale for future delivery the obligation to deliver and receive the commodity sold, and in view of such rules all sales made thereunder are presumptively valid, and the burden of proof rests upon one asserting the contrary to show that neither party to the transaction contemplated an actual delivery; nor does the mere fact that gambling transactions may be carried on in its exchange, in violation of its rules, establish the claim that the organization is a bucket-shop concern, doing business in violation of the laws of the state, and therefore not entitled to maintain a suit in equity to protect its property right in its market quotations, it being indisputable that it transacts a vast amount of legitimate business.-Board of Trade of City of Chicago v. Christie Grain & Stock Co., 116 Fed. 944. [k] (U. S. C. C., Mo., 1902) In the absence of legislative action, a court of equity is not authorized to deny relief to a corporation conducting a market exchange merely because the chancellor is of the opinion that its business, originally private, has grown to such magnitude and assumed such importance that the public is entitled to an interest therein, and to a control thereof commensurate with that interest. When such a condition arises, the measure of the public control is limited by the extent of the public interest, and the initiative in declaring a public use and the making of regulations pertaining thereto are of legislative, and not judicial, cognizance.-Board of Trade of City of Chicago v. Christie Grain & Stock Co., 116 Fed. 944. [1] (U. S. C. C., Mo., 1902) The Board of Trade of the City of Chicago has at least a qualified property right in the quotations made on its exchange based on transactions between its members and gathered by its own employés, and in their distribution, and in such right it is entitled to protection by a court of equity, as against one who obtains and uses such quotations without complying with reasonable regulations established by it as a condition to the right of others to receive and use its quotations.-Board of Trade of City of Chicago v. Christie Grain & Stock Co., 116 Fed. 944. [m] (U. S. C. C., Mo., 1903) Where it was proved that over 90 per cent. of the transactions executed in the pits of a board of trade were mere gambling transactions, which both parties intended to settle by a payment of differences in the subsequent price of the commodities dealt in before the maturity of the option, quotations so obtained were of no legitimate value as tending to promote the commerce of the country, and dissemination thereof could not be restrained by such board of trade.-Board of Trade of City of Chicago v. Donovan Commission Co., 121 Fed. 1012; Same v. Cella Commission Co., Id. [n] (U. S. C. C., N. Y., 1903) Where a board of trade sought to restrain the use of "continuous quotations," which were alleged to have been surreptitiously obtained by defendant, and such term was defined in contracts between complainant and telegraph companies for the transmission of the same as meaning prices electrically and uninterruptedly transmitted from complainant's exchange to such telegraph companies, and thence to their patrons at intervals of less than 10 minutes, and it did not appear that the quotations received by defendant were continuous quotations, as so defined, or that they had been received prior to their having been dedicated to the public, an injunction would not be granted pendente lite.-Board of Trade of City of Chicago v. Consolidated Stock Exch. of Buffalo, 121 Fed. 433. [o] (U. S. C. C., Wis., 1900) A preliminary injunction will not be granted on the application of a board of trade restraining the use of its market quotations by others, where the question whether there has been such prior publication of such quotations as to make them public property is in dispute, both as to the facts and their effect, and can only be properly determined on a full hearing. Board of Trade of City of Chicago v. C. B. Thomson Commission Co., 103 Fed. 902. [p] (U. S. C. C., Wis. 1900) A board of trade has a property right in the quotations made upon the transactions of its exchange, as prepared by its officers and agents, until their publication.-Board of Trade of City of Chicago v. C. B. Thomson Commission Co., 103 Fed. 902. [q] (U. S. C. C., Wis., 1901) The furnishing by a board of trade of market quotations, made upon the transactions of its exchange, to customers for their exclusive use, either by means of a ticker, or by placing them on a blackboard in the customers' office, is not such a publication as deprives the board of its property right therein, and it is entitled to the protection of such right by an injunction prohibiting the use of such quotations without its authority, and before their publication, by a third party, to whom they are furnished by one who obtains them surreptitiously.--Board of Trade of Chicago v. HaddenKrull Co., 109 Fed. 705. [r] (Ill. 1889) Though the Chicago Board of Trade is a private corporation, and its business is of a private nature, yet, the board having for many years permitted and invited a telegraph company to transmit during the sessions of the board, to all persons who chose to pay, reports of the dealings of the board, fluctuations in prices, etc., and the information so obtained having in consequence become of essential importance to the commercial world, such information has become impressed with a public trust, and the board cannot now treat it as purely private, and withhold it from all but a favored few.New York & C. Grain & Stock Exchange v. Chicago Board of Trade, 127 Ill. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107, reversing judgment (1888) 27 Ill. App. 93. [s] (Ill. App. 1901) A board of trade cannot restrain a telegraph company from giving, and another person alleged to be engaged in bucket-shopping from receiving, its market quotations, on the ground that the use of the market quotations in such unlawful business works an injury to such board, where the evidence fails to establish that any injury to any private right or interest of the board will result from the use of such quotations.-Christie Street Commission Co. v. Board of Trade of City of Chicago, 92 Ill. App. 604. [t] (Ill. App. 1901) A court of equity will not lend its aid to a criminal enterprise by compelling a board of trade to furnish its quotations for the purpose of carrying on the illegal business of "bucket-shopping."-ChristieStreet Commission Co. v. Board of Trade, 94 Ill. App. 229. [u] (N. Y. Sup. 1888) The New York Stock Exchange, which is a voluntary association organized for the purpose of affording facilities to its members for the transaction of their business as brokers in stocks and securities, and a convenient exchange for the conduct of such transactions, performs no public service, and is charged with no public duty; and, the business transactions on its floor being exclusively those of the individual members, they have the same immunity from public inspection as exists in other branches of mercantile business, and the exchange may refuse to furnish information as to such transactions to such persons or companies as it sees fit, though for many years it has permitted persons not members to have access to its floor and gather reports of its transactions, to be distributed as news.-Wilson v. Commercial Telegram Co., 3 N. Y. Supp. 633. [v] (N. Y. Sup. 1888) The Consolidated Stock & Petroleum Exchange in its complaint against the New York Stock Exchange alleged that the same class of securities are dealt in in both exchanges; that the defendant exchange, by reason of its high business character, and the great amount of business done on its floor, fixes the market value for such securities; that members of the plaintiff exchange cannot buy or sell such securities for their customers on the floor of their exchange unless informed of the prices ruling in the defendant exchange; and, unless they have means of ascertaining such prices, the value of membership in the plaintiff exchange will be largely depreciated. Held, that the defendant exchange could not be enjoined from excluding from its floor a telegraph company furnishing the desired information to the plaintiff exchange.-Wilson v. Commercial Telegram Co., 3 N. Y. Supp. 633. [w] (N. Y. Sup. 1899) Information as to transactions on ȧ stock exchange, which is a voluntary association of persons, whose facilities are limited to its members, is not property clothed with a public interest, so as to entitle persons not members to compel the furnishing of such information against the wishes of the association.-In re Renville, 61 N. Y. Supp. 549, 46 App. Div. 37. [x] (N. Y. Sup. 1888) The New York Stock Exchange, being a voluntary association, has a right to deny to a telegraph company the right to occupy its floor for the purpose of sending quotations of stock, and such exclusion is not against public policy.-Commercial Telegram Co. v. Smith, 47 Hun, 494. (123 Fed. 659.) FOOTE v. ANDERSON. (Circuit Court of Appeals, Third Circuit. June 16, 1903.) No. 26. 1. CORPORATIONS-ACTION TO CHARGE STOCKHOLDER-PROOF TO ESTABLISH RE LATION. An entry of the name of a person in the stockbook of a bank as a shareholder, without proof of knowledge, assent, or confirmatory act on his part, is not sufficient to establish the relation to charge his estate after his death with a statutory liability as a stockholder. |