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The exchange is a private corporation un- are attached to the bill. It is enough to say der the laws of New York, with 450 mem- of them that under them the companies rebers, and owns in the city of New York aceive the quotations under the condition not building for the use of its members, and con- to furnish them to any persons, firms, or corducts therein, on every business day, cotton porations who, or which, may be directly or sales for present and future delivery, the indirectly engaged in the promotion or maintransfers aggregating many million bales tenance of bucket shops or other places of cotton annually. The purchasts and sales where such continuous quotations are used for future delivery are permitted to be made as a basis for bets or other illegal contracts and are made only during market hours and based upon fluctuations of the prices of cotby open viva voce bidding, and the knowledge ton dealt in on the exchange. Nor shall the of the prices thus made has become a species companies directly or indirectly furnish the of property of such value that telegraph quotations to any person, firm, or corporacompanies pay large sums of money to the tion, whether members of the exchange or exchange for the privilege of receiving in- not, until such person, firm, or corporation stantaneously the quotations, and distribut- shall have submitted an application in writing the same to customers and many per- ing to the exchange in such form as it shall sons in the United States who are engaged provide, and until it has approved of the apin the cotton commission business. Such plication.
Such plication. The exchange has power to repersons are willing to pay and du pay the voke its approval. In such event the comtelegraph companies therefor, and the ex- panies shall cease to furnish the quotations, change realizes from the distribution of the and, if they have installed tickers or wires in quotations through the telegraph companies the office or place of business of such person, large sums of money annually. The quota- firm, or corporation, they shall immediately tions are such peculiar kind of property that remove the same. This, however, they are not their value depends upon the power of the required to do, “or to discontinue service exchange to confine the transmission and dis- furnished by any other means, which are tribution thereof to such telegraph compa- under restraint by injunctions of the courts nies and their distributing agencies as will during the pendency of the injunction.” In contract therefor with the exchange, and case of an application once approved and that, if any person or corporation is permit-afterwards disapproved by the exchange and ted to promptly acquire the quotations sur- a suit be commenced against the companies reptitiously or by theft, or without paying on account of the discontinuance of the quothe exchange therefor, such person or corpo- tations, the exchange shall defend such suits ration can promptly give the same to numer- at its expense and pay all fines, penalties, ous other persons, and the telegraph com- etc., to which the companies may be subject. panies contracting with the exchange woula In cases where an application has not been thus be put at a disadvantage in competi- approved by the exchange, suits against the tion with such persons so obtaining the quo- companies for refusal to furnish the quotatations without pay for them, and would tions shall be defended at the expense of the thereby be deterred from continuing to pay companies, which shall use diligent efforts the exchange the prices provided in the con- to secure the removal of injunctions. If racts with the telegraph comparies. The the suit shall be brought against the exmanner of collecting and distributing the change it shall defend at its own cost. For quotations is detailed, and yearly the cost the purpose of protecting the companies to the exchange, it is alleged, is $4,500. against the use of quotations originating Prior to 1893 the exchange permitted the on the exchange by parties not entitled to telegraph companies to gather the quota-them the companies may prosecute suits in tions through their own employees upon the their own name or that of the exchange to floor of the exchange building, and to dis- prevent or stop such competitive use. tribute them without any effective restric- The Western Union Telegraph Company tions upon the persons entitled thereto, with has to pay the exchange for the quotations the result that many persons used the same $13,584 per annum in equal instalments of in conducting so-called “bucket shops,” by $1,132 at the close of each month. The reason thereof the bucket-shop evil assumed form of the application is attached to the such large proportions and became so se- contract. rious as to materially affect the legitimate It is alleged that all persons receiving the transactions upon the floor of the exchange, quotations have made applications in the and its members were deprived of many form set out, except in a few instances, customers. The exchange therefore found it where persons who were receiving quotations necessary to terminate such right or license from the companies prior to the execution of of the telegraph companies, and to that end the contracts have, since the execution there. made contracts with them. The contracts of, secured temporary injunctions (the ex. change not being a party to the suits) to en- court sustained the jurisdiction. The appeljoin the companies from withholding or lant then filed an answer, in which he alwithdrawing the quotations, on the ground leged that the contracts with the telegraph that such persons were not required to sign companies were illegal and void, and that the such applications or secure the approval of exchange had no right to require the makthe exchange.
ing of applications to it, and no right to reThe defendant, Clarence P. Hunt (appel- quire the companies to refuse the quotalant), has not made application to either of tions to persons applying therefor, because the companies or the exchange, nor has the such persons refused to make application to exchange consented to his receipt of the quo- the exchange. He admitted that he had not tations. On July 14, 1903, he was receiving made an application to the exchange, but from the Western Union Telegraph Company had been desirous and even anxious to pay the quotations, and the company on said day for the use of the quotations and conform to notified him of the contract between it and any reasonable rules or regulations, by the exchange, and that under said contract whomsoever prescribed. He alleged that the company would be required to and would those stated in the bill were not reasoncease furnishing the quotations. Hunt de- able, but unjust, oppressive, and illegal. clined to make an application, but in lieu And further, that he commenced business in thereof, on July 31, 1903, filed in the chan- Memphis as a broker, dealing in cotton, cery court of Shelby county, Tennessee, a stocks, grain, and provisions, about the petition against the company to enjoin it month of March, 1898, and made applicafrom ceasing to furnish him said quota- tion to the Western Union Telegraph Comtions. An ex parte injunction was issued. pany, under its designation of the Gold & The company then filed its answer, and, the Stock Telegraph Company, for its quotacause coming on for final hearing on bill tions by “ticker." The application was acand answer, decree was entered for it. The cepted, he agreeing to pay therefor the sum supreme court of the state reversed the de- of $25 per month. He has continued to recree without deciding the merits, for the rea-ceive the quotations until the present time, son that the chancery court should not have and has built up and has now a considerable decided the cause on bill and answer, but business, at great expense and labor, and should have awaited the taking of evidence. the value and profits of the business depend The cause is now pending and the injunc largely upon the receipt and use of the quotion is still in force, and that by reason tations "by and through the 'ticker,' under thereof only the company is furnishing Hunt and in accordance with the contract.” The the quotations. And it is alleged "that such quotations are received through the “ticker” authorized receipt and use of said quotations automatically,-a specimen of which is atby said defendant is calculated to and in tached to the answer,—and the letters and time will, if not entirely stopped, seriously figures are at once put upon a blackboard impair the value to your orator of its quo- in his office for reference and use, and are tations, and that if even one person within used immediately for the transaction of busithe jurisdiction of this court be allowed to ness. They indicate New York as the place secure such quotations without restrictions from which the quotations are sent, the time as to the use thereof which your orator im- of sending, the month the cotton has been poses as aforesaid, such person can furnish sold for. He has transacted no business exthem to all the bucket shops and other per- cept as a broker, as stated, and is duly lisons witnin the United States desiring them, censed under the laws of Tennessee. Every and thus entirely defeat the efforts of your transaction made by him as evidenced by a orator to prevent their use in bucket shops report made to his customers upon a form, as a basis of their illegal bets, and mate a copy of which is attached to the answer. rially impair the right of your orator to de. The report evidences the consummation of rive a revenue from the distribution of said the contract, and has upon it the following: quotations."
“All orders for the purchase or sale of any It is further alleged that there is no ade- article are received and executed with the quate remedy at law, and that “the amount distinct understanding that actual delivery involved and matters in dispute, exclusive is contemplated where order is executed, of interest and costs, is much more than the and that the party giving the order so unsum of $2,000.” An injunction was prayed. derstands and agrees.” A preliminary injunction was issued. 144 Shortly after July 14, 1903, he was inFed. 511.
formed that the exchange had required the The appellant filed a plea to the jurisdic-telegraph company to cancel its contract tion, traversing the allegations of the bill with him, and to take the ticker out of his which averred the jurisdictional amount. office, and to cease to furnish to him the A replication to the plea was filed. The quotations; thereupon he and other persons similarly engaged in business of broker com- , and is to be done in the course of the said menced in the chancery court of Shelby suit." The other allegations of the answer county the suit mentioned in the bill. The are not material to the question now inrecord and proceedings in the suit. are re- volved. A replication to the answer was ferred to as part of the answer. The bill | filed.
was submitted on the in that suit prayed an injunction against pleadings and exhibits, agreement of counthe telegraph company from removing the sel as to certain paragraphs of the bill, ticker or refusing to furnish the quotations evidence taken before the court, which conas long as the company furnished them to sisted of the record of the suit in Shelby any other person. A preliminary injunction county, and testimony of witnesses. It was was granted. The Western Union Telegraph decreed that a permanent injunction issue Company, the defendant in the suit, an- restraining Hunt in accordance with the swered, and based its defense substantially prayer of the bill. Extracts from the testiupon its contract with the exchange. Hunt, mony will appear in the opinion of the upon the authority of such contract, and up- court. on information and belief, averred that the answer was so filed by the company at the Messrs. Thomas B. Turley and William request, and by the direction, and for the H. Carroll for appellant. benefit, of the exchange, "and with the view Messrs. Henry S. Robbins, Henry W. Taft, and for the purpose of asserting and set- and Henry Craft for appellee. ting up for him, and in his belief, the very same matters and grounds and causes of ac
Mr. Justice McKenna, after stating the tion as are set up and relied upon in this case as above, delivered the opinion of the suit.” Upon the hearing the injunction was court: discharged and the court dismissed. The de
It will be observed that this case is like cree was reversed by the supreme court of the Board of Trade v. Christie Grain & the state and the injunction continued in Stock Co. 198 U. S. 236, 49 L. ed. 1031, 25 force. The opinion of the supreme court is Sup. Ct. Rep. 637, and we therefore start made part of the answer. It appears there with some propositions established. It is from that the court considered that a se established that the quotations are property rious question was presented by the defense and are entitled to the protection of the of the contracts between the telegraph com- law, and that the exchange “has the right to panies and the exchange. It was said upon keep the work which it has done, or paid for the defense two questions arose,-one of fact, doing, to itself.” It is, however, contended whether the contracts were made; the other by appellant that the controversy about of law, whether, conceding the existence of them that this suit presents does not involve the contracts, did “they furnish a sufficient the value of $2,000, exclusive of interest and answer to the demands of the complain-costs. This is the issue presented by the ants.” The court declined to pass upon plea to the jurisdiction. Appellant coneither question, regarding the record imper- tends that the value involved is measured fect. The court continued the injunction.
by his contract with the telegraph company. The suit is still pending in the chancery The exchange contends that the matter in court, and, by reason of his contract with dispute is the value of the object sought to the company of May 1, 1899, and the in- be accomplished by the bill. The circuit junction, Hunt has remained in the use and court expressed it to be "the value of the enjoyment of the ticker, “and is receiving, contract between the New York Cotton Exand the Western Union Telegraph Com- change and the Western Union Telegraph pany has been and is furnishing him, the Company." continuous quotations described in the bill On the issue presented by the plea the and in this answer.” And it is averred that burden of proof was upon the appellant, and that suit embraces the same questions of he was required to establish by a preponderfact and law as this present suit and is be- ance of the evidence that the amount involved tween the same parties plaintiff and defend was less than the jurisdictional amount. ant, and the decree to be pronounced will Sheppard v. Graves, 14 How. 505, 14 L. ed. adjudicate and dispose of the same matters | 518; Wetmore v. Rymer, 169 U. S. 115, 42 of controversy. That suit is relied on as L. ed. 682, 18 Sup. Ct. Rep. 293; Gage v. a bar to the present one, and it is insisted Pumpelly, 108 U. S. 164, 27 L. ed. 668, 2 that the circuit court had no jurisdiction to Sup. Ct. Rep. 390; Adams v. Shirk, 55 C. C. grant or issue the injunction prayed for, as A. 25, 117 Fed. 801. The only evidence "it would require and compel the violation offered by him was his contract with the and breach of the injunction granted and intelegraph company in connection with eviforce in the chancery court of Shelby coun- dence of the manner of his receipt and use of ty, and the undoing of what has been done i the quotations. This testimony was to the effect that the quotations are communicated | what is called the independent trader, or through a ticker, which is a machine with independent trade, as distinguished from the a tape attached to it, that registers the trade or traders who carry their transacprice of cotton, giving the hour. They come tions to the cotton exchanges of the country, sometimes not more than a quarter of a and in a measure with the volume of busiminute or a half of a minute apart, and are ness done by such persons in an approximate copied from the tape and placed upon a way. blackboard, where all can see them. When He further testified that the amount of new quotations are received the old ones are business thus diverted from the exchange generally wiped out. The “ticker service is made a difference to the exchange of fully very slow, and the value of it depends on the $1,000,000 a year, and that the value of the time it is received. After it is put upon the right to control the distribution of the quoblackboard it becomes public property, so tations in the manner set out in the bill far as concerns the value of it.” And it was would very much exceed $2,000. testified that a firm by the name of Ganong The witness was unable to state the rela& Fitzgerald received their quotations about tive amount of business done on the exfive minutes before appellant, they having change in the years 1903, 1904, and 1905, better wire service. And also that there was because there was no record of the transaca wire running into the Memphis Cotton Ex- tions kept, but he reached the conclusion in change, and that not quite a minute elapsed regard to the value of the business diverted from the time the ticker registers the mar- from the exchange partly from the evidence ket quotations to the time they are regis- given by appellee and partly as to the busitered on the blackboard in the city of Mem-ness done by the bucket shops. And he phis and open to the public. Appellant tes- put the value "in dollars and cents," of the tified that the amount of his business in cot-contract between the exchange and the teleton for future delivery amounted to one graph company, independent of the amount half million dollars per year, and when he of business diverted, at the amount the extook a trade himself he was prepared to de- change received from the telegraph company. liver the cotton or commodity in conformity The following colloquy took place between with the agreement between himself and his the witness and counsel for appellant: customer, and goes so far as to write across all orders that actual delivery is contem- Q. Now, Mr. King, what time, up to this plated and understood.
good moment and hour, has that exchange A witness on the part of the exchange tes- failed to receive the amount of that contified that he was employed by the board of tract, that is, for giving the Western Union trade as expert to investigate persons who Telegraph Company the right to furnish pretended to be brokers, “but who were in this information gathered on the floor of fact bucket shops,” and was in that position the New York Cotton Exchange ? for several years, gathered statistics, made A. It has not. estimates of the volume of business during Q. Then, in short, this here is nothing ex1901 and 1902, and has kept pretty well in- cept fear and apprehension that unless these formed ever since as to the number of bucket defendants are restrained that is likely to shops in the United States. And he further happen, and affect the value of the contestified that trades are carried on in such tract? shops in all commodities that are traded in A. And the business upon the exchange. on the New York Cotton Exchange, New York Stock Exchange, and the Chicago It is manifest that the injury to the exBoard of Trade. Of the value of the right change is not the rate paid by the appellant of the New York Cotton Exchange to conto the telegraph company. The purpose of trol the distribution of its quotation he the suit is to enjoin the appellant from resaid: “One can only estimate or approximate ceiving, using, or selling, directly or indithe value of the right, for the reason that rectly, the exchange's quotations, or perthe volume of speculative business in the mitting or maintaining any wire to his office country changes, and that changes the val- over which the quotations are passing, or ue of the right. If there is a large volume distributing the quotations, until he shall of speculative business in cotton the value have acquired the right to receive them, to the New York Cotton Exchange would either by contract of purchase from the exprobably amount to a million dollars, while change, or, with its consent and approval, with a depressed market it would not from one of the telegraph companies auamount to more than $200,000 or $300,000."thorized to distribute them. In other words, And this is the amount per year.
the object of the suit is to keep the control A superintendent of the exchange testi- of the quotations by the exchange and its fied to his familiarity in a general way with protection from the competition of bucket
shops or the identity of its business with | Stock Co., either in the right asserted or that of bucket shops. And the right to the in the defense against it. Even if the cases quotations was declared, as we said in were distinguishable, it might still be conBoard of Trade v. Christie Grain & Stocktended, that would be of no consequence in Co., to be property, and the exchange may determining the jurisdictional amount of keep them to itself or communicate them the matter in dispute. But we will consider to others. The object of this suit is to the difference claimed to exist between the protect that right. The right, therefore, is
The right, therefore, is cases. In the Christie Case, it is contended, the matter in dispute, and its value to the the right asserted was “to prevent getting exchange determines the jurisdiction, not at the knowledge of a trade secret or the the rate paid by appellant to the telegraph quotations of the market surreptitiously, company. The value of the right was tes- and using the knowledge so obtained,” and tified to be much greater than $2,000. In that, it is insisted, was the matter in conMississippi & M. R. Co. v. Ward, 2 Black, troversy. “Here,” it is said, "there is no 485, 17 L. ed. 311, it was decided that juris- violation of a duty or trust. The market diction is tested by the value of the object quotations are not received surreptitiously. to be gained by the bill. To the same effect The appellant is not depriving the appellee is Board of Trade v. Cella Commission Co. of the protection of the law.” In the Chris145 Fed. 28. In the latter suit the Chicago tie Case the quotations were gotten and Board of Trade obtained a decree restrain- published, “in some way not disclosed,” but, ing the use of its continuous quotations by it was said, as the defendants did not get the Cella Commission Company. It was them from the telegraph companies authorsaid that the amount or value of such right ized to distribute them, had declined to sign is not the sum a complainant might recover contracts satisfactory to the plaintiff (board in an action at law for the damage already of trade), and denied the plaintiff's rights sustained, nor is he required to wait until altogether, it was a reasonable conclusion it reaches the jurisdictional amount. The that they got, and intended to get, their latter declaration is supported by Scott v. knowledge in a way which was wrongful. Donald, 165 U. S. 107, 41 L. ed. 648, 17 Sup. This, however, was not said to limit plainCt. Rep. 262.
tiff's right, but to express a violation of it. Counsel for appellant do not deny that the right was clearly defined to be, the right jurisdiction is determinable by the object of the board of trade to keep the quotations sought to be accomplished by the bill, but to itself or communicate them to others. they assert that the value of that was specu- And this is also the right of the exchange in lative, and changed with the volume of busi- the case at bar. It can be violated not only ness. Counsel lay great stress on the testi- by getting the quotations surreptitiously or mony of the superintendent of the exchange, “in some way not disclosed,” or by getting to the effect that the value of the contract them from a person forbidden to communibetween the exchange and the telegraph cate them. company, independent of the business divert- The next contention of appellant is that ed from the exchange, is, in dollars and the court had no jurisdiction to grant the cents, the amount it receives from the tele- | injunction and pronounce the decree apgraph company. Upon this testimony coun- pealed from. The only question involved in sel assert the right claimed by the exchange this branch of the case, appellant says, is
, to be the narrow one of preventing the ap- "whether it comes within the provision of pellant from receiving the continuous quo- the Revised Statutes, $ 720, U. S. Comp. tations from the telegraph company, which Stat. 1901, p. 581, which is to the effect that he pays for, pending a litigation in the no writ of injunction shall be granted by state courts, and this distinguishes the case a court of the United States to stay proceedfrom the Board of Trade v. Christie Grain ings of any court except in matters of bank. & Stock Co. and contend that the jurisdic- ruptcy." tional amount has not been established, as And appellant insists that this suit necthe telegraph company is fulfilling its con-essarily offends that section, because under tract with the exchange. Of the latter con- its decree he "cannot have the benefit of the tention we have sufficiently indicated our judgment of the state court without being view, and it is only necessary to add that in contempt of the Federal court,” and that because the value of the quotations to the he is restrained by the circuit court from exchange varies with the volume of business receiving from the telegraph company what does not impair the effect of the testimony the company is forbidden to refuse him by that the value of its right to control them the state court. To sustain his contention is “much greater than $2,000.” We cannot appellant cites United States v. Parkhurst concur in the conclusion urged by appellant, Davis Mercantile Co. 176 U. S. 317, 44 L. that this case is distinguishable in principle ed. 485, 20 Sup. Ct. Rep. 423, and cases from Board of Trade v. Christie Grain & there referred to. Also Diggs v. Wolcott, 4