vision than that it was enacted to prevent hasty action, and to give to the public and the property owner an opportunity to obtain full and specific information concerning the proposed improvement and of the terms of the ordinance before the ordinance is passed. While it is true that the council is finally the sole judge of the mode or manner to be adopted in making a public improvement, and of the extent of such improvement, still that does not preclude an inquiry by the courts whether, in prescribing by ordinance such mode, manner, and extent, the requirements of the statute have been complied with. If the statute above quoted can be evaded by dividing this improvement, costing upwards of $200,000, into three sections, each falling within the $100,000 limit, as was done in this case, it can be evaded in every other case, and rendered wholly nugatory.

As before said, the city council is the judge, subject to the provisions of the statute, of the extent of the improvement to be provided for by the ordinance, and may, of course, provide for different improvements by different ordinances passed at the same session; but if, in reality, the improvements proposed are but a single one, and exceed in cost $100,000, it is a proper subject of inquiry by the courts whether such division was or was not made to evade the statute; and in order to arrive at the solution of the inquiry it is proper to examine the separate ordinances covering the improvement or improvements, the estimates, the assessment roll, and all other documents, records, and proceedings in the case which throw light on the question. To do this would not involve an inquiry into the motives of the city council, but would only involve the determination of the question as to the object and purpose of the division, respecting the question whether it was or was not au evasion of the statute. Ligare v. City of Chicago, 139 Ill. 46, 28 N. E. 934, 32 Am. St. Rep. 179. In the case at bar the improvements, as provided for in the three ordinances, were in reality but one improvement, and of a part of one street. The nature and character of the improvements, and the materials to be used, provided for in the three ordinances, were the same, and, without attempting to lay down any general rule applicable to all cases involving this question, it is sufficient to say that the record shows that there was no adequate cause for the division of this improvement into three separate ones, and that the only apparent purpose was to evade the statute requiring reference to a committee, postponement of action for one week, and publication in full in the proceedings of the council. Substantially the same views were expressed in Kerfoot v. City of Chicago, 195 Ill. 229, 63 N. E. 101. We are of the opinion that the ordinance is void, and it must be so held, and the judgment reversed.

Judgment reversed.

(196 Ill. 396)

CENTRAL STOCK & GRAIN EXCHANGE v. BOARD OF TRADE OF CITY OF CHICAGO et al.

(Supreme Court of Illinois. April 16, 1902.)

INJUNCTION - UNLAWFUL

TRANSACTIONS

MARKET QUOTATIONS BUCKET SHOPS BOARD OF TRADE- REASONABLE RULESENFORCEMENT.

1. Under 1 Starr & C. Ann. St. 1896, p. 1304, §§ 1, 2, to suppress bucket shops, and directed against the keeping of any office or place wherein is conducted pretended trading in any commodities, on margins or otherwise, without any intention of receiving the property bought, or of delivering it, if sold, proof that purchases were made without any intention of receiving the commodity purchased. and that the only object was to make money on the fluctuations of the market by the pretended purchase of grain on margins, is sufficient to establish the existence of a bucket shop, justifying the board of trade in refusing to continue to furnish it with market quotations for conducting its business.

2. Where a complainant, seeking to enjoin a board of trade from refusing it market quotations, declines to furnish telegrams and papers and to answer questions relevant to the issue, on the claim of constitutional privilege against being compelled to give self-incriminating evidence, the presumption is that the testimony if given, or the evidence if produced, will be against it.

3. In a suit to enjoin a board of trade from refusing market quotations, evidence by complainant that a large part of the transactious between members of the board of trade was speculative, and not different from that done by complainant, is irrelevant.

4. A board of trade rule providing for the expulsion of any member who shall be interested in business with, or who shall knowingly execute any order for the account of, any firm or individual engaged in the business of dealing in differences on the fluctuations in the market price of any commodity without a bona fide purchase and sale for actual delivery, does not infringe public policy or any rule of law, is not unreasonable, and its enforcement cannot be enjoined.

Appeal from appellate court, First district. Bill by the Central Stock & Grain Exchange against the Board of Trade of the City of Chicago and another. From a judgment of the appellate court (98 Ill. App. 212) reversing a decree for plaintiff, it appeals. Affirmed.

The following is the statement of the case and the opinion of the appellate court made and delivered by Mr. Justice Adams:

Statement.

"July 28, 1901, appellee filed a bill against the Board of Trade of the City of Chicago and the Western Union Telegraph Company, alleging that appellee is an Illinois corporation, and is engaged in the business of dealing in grain, provisions, produce, and other commodities in the city of Chicago; that the Western Union Telegraph Company, which, by arrangement with the board of trade, transmitted to third persons the market quotations of the board, had, by the request of appellee, so strung its wires as to connect them with appellee's place of business in the city of Chicago, and there attached them to

out a bona fide purchase and sale of property for an actual delivery, shall be deemed guilty of unmercantile conduct, which renders him unworthy to be a member of the association, and upon complaint to, and conviction thereof by, the board of directors, he shall be expelled from membership in the association.'

"August 4, 1900, appellee filed a supplemental bill, averring that, while a motion for a dissolution of the injunction was pending, counsel for the board of trade offered, in open court, to permit appellee to receive the quotations through the Cleveland Telegraph Company, and that thereupon an order was entered giving appellee leave to file a supplemental bill, and permitting the Western Union Company to discontinue the furnishing of quotations, and the board of trade to furnish them to the Cleveland Telegraph Company, and the latter company to furnish them to appellee; that since the making of said order the Cleveland Telegraph Company is performing the same service for appellee which was formerly performed for it by the Western Union Company; and that all the allegations of the original bill as to the Western Union Company are true as to the Cleveland Company. Prayer that appellee may have the same relief against the latter company as prayed in the original bill against the former company.

"The board of trade answered, denying that it assented to any arrangement by which appellee was to receive the quotations from the Cleveland Company, and averring that since July 31, 1900, appellee has been receiving the quotations from that company in accordance with a contract between it and the company, set up in the answer of the company.

"The Cleveland Company answered, setting out the contract of July, 1900, between it and the board of trade, heretofore referred to, and also setting out a contract between it and appellee for the furnishing by it to appellee of the market quotations of the board of trade, which contract contains the following undertaking of appellee: "That said party of the second part agrees that its business is and shall be the business of a dealer in grain, produce, stocks, bonds, and other commodities; that said party of the second part is not conducting, and will not conduct, a bucket shop or other business contrary to the criminal laws of the state of Illinois, or use or allow any one else to use said quotations for that purpose.' It is also provided by the contract that (except in a case not here involved) neither party shall terminate the contract without giving to the other party 30 days' written notice of its intention so to do.

"The cause was heard before the chancellor on the testimony of witnesses and other evidence given and produced in open court. The court found, among other things, that the defendants have not, nor has any of them,

any right to discriminate between persons and corporations engaged in business, and who are ready to pay for the market quotations, and to conform to all reasonable regulations as to the collection and transmission thereof. The temporary injunction is made perpetual by the decree, and the relief prayed is granted."

Opinion.

"The sole defense set up in the answers is that appellee is engaged in conducting a bucket shop; in other words, that the appellee's business is such as is prohibited by 'An act to suppress bucket shops and gambling in stocks, bonds, petroleum, cotton, grain, provisions, and other produce,' in force July 1, 1897. 1 Starr & C. Ann. St. 1896, p. 1304. Section 1 of the act provides: "That it shall be unlawful for any corporation, association, co-partnership or person to keep or cause to be kept within this state any bucket-shop, office, store or other place wherein is conducted or permitted the pretended buy. ing or selling of the shares of stocks or bonds of any corporation, or petroleum, cotton, grain, provisions or other produce, either on margins or otherwise, without any intention of receiving and paying for the property so bought or of delivering the property so sold, or wherein is conducted or permitted the pretended buying or selling of such property on margins, or when the party buying any of such property, or offering to buy the same, does not intend actually to receive the same if purchased or to deliver the same if sold; and the keeping of all such places is hereby prohibited,' etc. Section 2 of the act is as follows: 'It shall not be necessary, in order to commit the offense defined in section 1 of this act, that both the buyer and the seller shall agree to do any of the acts therein prohibited, but the said person thus pretending or offering to sell, or thus pretending or offering to buy, whether the offer to sell or buy is accepted or not; and any corporation, association, co-partnership or person who shall communicate, receive, exhibit or display. in any manner, any such offer to so buy or sell, or any statements or quotations of the prices of any such property, with a view to any such transaction as aforesaid, shall be deemed an accessory, and upon conviction thereof shall be fined and punished the same as the principal and as provided in section 1 of this act.'

"The supreme court, in Soby v. People, 134 Ill. 66, 25 N. E. 109, has in a very careful opinion stated the object of the act, and what would be a violation of it. The court say: 'It is manifest that the object of the statute was to suppress and prevent gambling in grain and other commodities.' Page 71, 134 Ill., and page 111, 25 N. E. Also: 'A consideration of the act will, as before indicated, show that it is directed against the keeping of any office or place, etc., first, wherein is conducted or permitted the pre

tended buying or selling of grain or other produce, on margins or otherwise, without any intention of receiving the property bought or delivering it if sold. Under this clause of the first section the offense consists in keeping the place, etc., where such buying or selling is conducted or permitted. That plaintiff in error kept the office or place is conceded, and that buying and selling upon margins, without any intention on the part of the customer to receive the thing bought or to deliver the thing sold, was permitted in such office or place so kept by the plaintiff in error, is also substantially conceded, and, if it were not, is abundantly proved. Under this provision of the act, the keeper of such office or place, etc., cannot shield himself from criminal responsibility behind the fact that he made no inquiry of his customers. The statute is preventive in its character, and is aimed at the keeping of places where gambling in grain is permitted. The keeper must know that the transaction is not gambling, or, in good faith, have just reason to believe that the buying or selling is not within the intended prohibition of the statute. But, if this were not so, there is abundant evidence in this record to show that the plaintiff in error knew that his customers did not contemplate an actual delivery of the commodity bought or sold. Again, the second clause makes it an offense to keep a place, etc., wherein is conducted or permitted the pretended buying or selling of such produce on margins. It is scarcely contended that the customer did not, in fact, intend only to purchase options, and to make money in the rise and fall of the market, without any expectation of receiving or delivering grain. In other words, it is too plain for argument that the buying and selling of grain was a mere pretense,--at least so far as the customer was concerned. Again, the third clause creates the offense where the party buying such produce, or offering to buy the same, does not intend actually to receive the same if purchased or to deliver the same if sold. Here the proof establishes, beyond question, that purchases were made without any intention of receiving the commodity purchased. The only object was to make money on the fluctuations of the market by the pretended purchase of the grain on margins.'

"The evidence in the case is very voluminous. The evidence for the appellants, on whom the court held the burden of proof rested, was mainly directed to proving that the appellee kept a bucket shop, within the meaning of the statute; that the dealing at appellee's place of business was solely on the market quotations of the Chicago Board of Trade, and that it knowingly permitted the pretended buying and selling by its customers of grain with reference to such market quotations, and without any intention of receiving the grain ostensibly bought, or delivering that ostensibly sold, their only intention

being to make money hy the rise or fall of the market, as the case might be. Appellee's evidence was mainly directed to proving that a large part of the business of the Board of Trade of the City of Chicago was similar to that of appellee, namely, that grain was bought and sold on the exchange of the board on margins or stop orders, without any intention to deliver the grain, and, incidentally, that there were some deliveries by and to appellee. The evidence shows clearly that the main part of appellee's business was dealing in futures on margins, without any intention of delivering the grain sold or receiving that purchased by it, and that it kept a bucket shop, within the meaning of the statute, and used the market quotations in its bucket shop business.

"Appellee's counsel in their argument admit that 'actual deliveries and receipts of commodities were not a large percentage of the business transacted,' and this admission is fully sustained by the evidence. It appears that there were some deliveries of grain, but such were exceptional and insignificant in comparison with the bulk of appellee's business. It also appears from the evidence that appellee sent out delivery notices, and in some cases required persons to sign a contract to receive, but, when the person receiving such notice or signing such contract objected to delivery, he had no difficulty in settling his trade with appellee by paying or receiving, as the case might be, the difference between the price at which the grain was bought or sold and the price at which the trade was closed by stop order or exhaust of margin.

"The requiring a party who purchased or sold to sign a contract to accept or make delivery is an unusual circumstance and not at all necessary in a bona fide transaction, the law in such case being that the party selling is bound to deliver and the party purchasing is bound to accept delivery. Therefore, the purpose of such a contract must have been something other than the securing of a legal right. Stockton, witness for defendant, testified that McHie, appellee's president, told him that the trades must be based on actual delivery, and that he (witness) would have to sign an agreement to that effect, which he did, but that after he made the agreement, although he sometimes made trades with appellee of 50,000 or 100,000 bushels of grain in a day, he never received from or delivered to appellee one bushel of grain and never saw a warehouse receipt in any transaction he had with appellee. It also appears from the evidence that one of appellee's rules was, that if one of its correspondents sent an order by telegraph, the telegram should not contain a stop order, but if a stop order were intended it must be sent by a second telegram. This, we think, was evidently for the purpose of preventing the original order from apparently showing that the proposed deal was purely specula

tive. In Soby v. People, supra, the court say: 'We are of opinion that it is no longer possible in this state, under any shift or device, however specious, to keep an office or other place where parties may, under the pretense of buying or selling grain or other produce, engage in speculation in futures and gamble upon the rise and fall of the market,' etc.

"The court ruled appellee to produce telegrams received in its business since July 1, 1901, which it declined to do on the claim of constitutional privilege, which claim was allowed. The witness Sanderson, clerk of appellee, testifies that he had, as such clerk, recorded on certain sheets trades made with appellee, and appellants moved for a rule on appellee to produce the sheets, which motion appellee resisted on the same claim of privi lege, and the claim was allowed. A number of the witnesses, some of them officers of appellee, refused to answer questions relevant to the issues, on the like claim of privilege. When a party refuses to answer relevant questions or to produce evidence in his possession or subject to his control, the presumption is that the testimony if given, or the evidence if produced, would be unfavorable to him. 1 Jones, Ev. § 17. Although such refusal, if based on the ground that the evidence might tend to criminate the party, could not be used against him in a criminal prosecution, we are inclined to the view that in a civil case the general rule as above stated is applicable. Evidence produced by the appellee tending to prove that a large part of the transactions between members of the board of trade is on futures and purely speculative, and not different in kind from that done by appellee, is irrelevant. Appellee is seeking relief, not the board of trade nor any member of the board..

"It is certified by the learned judge who tried the cause that it was not necessary to a final disposition of said cause to determine whether or not the complainant kept a bucket shop,' and that such was his view is evidenced by the decree, and also by his opinion, a copy of which is filed in the cause here. We are committed to the opposite view. Christie Street Commission Co. V. Board of Trade, 94 Ill. App. 229. That was a case similar to the present, in which the appellant, complainant in the lower court, prayed an injunction to restrain the defendants from refusing to furnish the complainant with the market quotations, and the defense in that case, as in this, was that the complainant was keeping a bucket shop, and wanted the market quotations for use in that business. In that case we said: 'But, aside from any question of pleading, we are of opinion that, when it appeared to the chancellor that the aid of the court was sought to enable the complainant (appellant) to carry on an enterprise which was prohibited by the law, the chancellor could not do other wise than deny the prayer. If it is not

within the scope of chancery jurisdiction to punish or prevent crimes at the instance of private suitors, it is surely quite as far re moved from the scope of equity to assist the lawbreaker in his violation of the statute.'

"The injunction in the present case not only enjoins the appellant from refusing to furnish to appellee the market quotations, but it enjoins the board of trade from enforcing the rule (section 8) copied in the statement preceding this opinion. The temporary injunction enjoined the appellants from 'prohibiting any person, firm, or corporation, being a member of the board of trade, from doing business with the complainant, the same as they do with other persons.' The temporary injunction is made perpetual by the final decree. We are of opinion that the rule, enforcement of which is enjoined by the decree, does not infringe public policy or any rule of law, and that it is not unreasonable. being the case, it was error to enjoin its enforcement. In Board of Trade v. Riordan, 94 Ill. App. 298, we reversed a decree enjoining the board of trade from trying a member of the board charged with a violation of the rule in question, citing numerous decisions. decree will be reversed."

Such

The

Jacob J. Kern, Chas. D. Fullen, and John A. Brown, for appellant. Henry S. Robbins, for appellees Board of Trade and Cleveland Tel. Co.

PER CURIAM. The foregoing opinion of the appellate court, from which we have omitted details of the evidence, meets with our full approval, as making a just and proper disposition of the case on the record, and it will be adopted as the opinion of the court. It clearly appears that the quotations of market prices which appellant sought by its bill to compel appellees to continue to furnish were used, and were obtained for the purpose of being used, in conducting a business in violation of law as well as of its contract with the telegraph company. Appellant was not entitled to any relief of that character. In this respect the case differs materially from New York & Chicago Grain & Stock Exchange v. Board of Trade, 127 III. 153, 19 N. E. 855, 2 L. R. A. 411, 11 Am. St. Rep. 107.

The judgment of the appellate court will be affirmed. Judgment affirmed.

BOGGS, J. I concur in the judgment of affirmance herein. I, however, doubt the soundness of the proposition that, if the privilege given by law to decline to answer a question is availed of, a presumption having probative force as evidence arises that the answer would have been unfavorable. Greenleaf (1 Greenl. Ev. [15th Ed.] p. 600) says: "If the witness declines to answer, no inference of the truth of the fact is permitted to be drawn from that circumstance." In

Mr.