137 Ill. App. 61 | Ill. App. Ct. | 1907
delivered the opinion of the court.
No relief is sought by the bill against the liverymen’s association. The. association is not made a party, nor are any of its members made parties, and counsel for appellant says in his argument that no relief is asked against the liverymen’s association, and in his reply argument he says he does not consider the alleged agreement between appellee and the liverymen’s association illegal. The bill asks to have section 8 of article "6 of appellee’s constitution declared void, as being in restraint of trade and of appellant’s rights in the premises, and that appellee be perpetually enjoined from enforcing it.
The questions to be determined are whether section 8 is unreasonable, in the sense that it is illegal or contrary to public policy, and whether appellant is equitably entitled to the relief prayed.
Section 8 is as follows: “Any member who shall be found guilty of degrading the'profession by such unprofessional conduct as individually soliciting, or employing parties to secure business, before death as well as after, shall be dealt with according to section 2 of this article.” Section 2 provides for the suspension of any member who shall have unpaid fines standing against him for over thirty days.
The words of section 8, “individually soliciting, or employing others to secure business, before death as well as after, ’ ’ clearly mean, as we think, personal solicitation of business, and do not prohibit the advertisement by a member of the association of his business, or competition in the prices of articles furnished, or for personal services. In this connection it may be observed that the business of undertakers is such that they have a peculiar advantage in the matter of advertising. Persons who attend funerals observe the articles furnished by the undertaker, and the manner in which his' services are performed, and if such articles are proper and the undertaker’s personal services are performed in a decent and orderly manner and suitable to the occasion, those present will be likely to remember this when it becomes necessary for them to employ an undertaker.
The section does prohibit all personal solicitation for business at any time or place. It is possible, though hardly probable, that, in the absence of such a provision as section 8, some undertakers might visit a house in which one of the family lay sick, and in anticipation. of the death of the sick person, and while his or her relatives are hoping, as such will hope until the very hour and article of death, for recovery, solicit employment as undertakers, in the event of death; or might indulge in like solicitation after death had occurred and while the surviving members of the family, grief stricken, are mourning the decease of the loved one. Of undertakers so acting it might, not inappropriately, be said, “They are neither man nor woman; They are neither brute nor human; They are ghouls.”
Solicitation for employment before the death or serious illness of any member of the family must, in order to be at all effective, be addressed to some member of the family having authority to employ an undertaker, or at least to influence such employment in the event of a death occurring in the family; and we think such solicitation would, in the majority of instances, if not in all, be offensive to the person solicited; and that, if such solicitation were general, it would tend to degrade the occupation of undertakers in public estimation. The language of section 8 indicates that such is the opinion of the Undertakers ’ Association. The associa-' tion is a voluntary one, and not incorporated for pecuniary profit, as alleged in the bill, and its declared objects are “to secure harmony in business and to cultivate a more friendly spirit socially, and to elevate and bring to a higher state of perfection our profession ; to disseminate correct principles of business management, the best method of protecting the interests of undertakers, as well as those of patrons, and to promote the interests of all recognized» and legitimate undertakers.” We think the members of this voluntary association had the right to agree to exclude personal solicitation of business as tending to degrade the business in public estimation, and that section 8 is not unreasonable.
"We think The People v. Live Stock Exchange, 170 Ill. 556, cited by appellant’s counsel, distinguishable from the present case. The Live Stock Exchange was a corporation organized for pecuniary profit. - It enacted a by-law prohibiting the employment of any solicitor not a member of the exchange, and also prohibiting the employment of more than three solicitors for each firm, in certain states mentioned. The state’s attorney for Cook county filed an information in the nature of quo warranto against the Live Stock Exchange, setting up the by-law, alleging its invalidity, and praying for the forfeiture of the charter of the corporation. The Live Stock Exchange was a corporation organized for pecuniary profit, and the suit was instituted by a public officer acting in the public interest, which the court recognizes, saying: “Efforts to prevent competition, and to restrict individual efforts and freedom of action in trade and commerce, are restrictions hostile to the public welfare, not consonant with the spirit of our institutions, and in violation of law. ’ ’ The Undertakers ’ Association is, as the court said of the Board of Trade of the city of Chicago, in Board of Trade v. Nelson, 162 Ill. 431, “merely a voluntary association, although incorporated under an act of the General Assembly,” and the bill is filed not in the interest of the public, but solely in the interest of appellant.
The undertaker’s business is peculiar and unlike any other business of which we have any knowledge, and while the general language used in the case cited, with reference to the facts of that case, is sufficiently comprehensive to include all kinds of business, we do not think it applicable to section 8 or to the business of undertakers. It is plain from appellant’s bill that his ultimate object is to have the benefit of the agreement between appellee and the liverymen’s association, and that the prayer to decree section 8 void is but a means to the attainment of such ultimate object. The bill alleges that the liverymen’s association is composed of all the liverymen in Chicago, and that, by the agreement, no undertaker not a member of the undertakers ’ association can hire from a liveryman hearses, carriages, horses or drivers, and that the liverymen are so connected with the undertakers’ association that they will not furnish the same to any undertaker not a member of that association, or suspended from membership in it. Such is the agreement which appellant, by his counsel, says is legal, while urging that section 8 is illegal, and he asks the court to enable him to enjoy the benefits of that agreement by declaring section 8 illegal and enjoining the enforcement thereof, thus preventing his suspension from membership in the undertakers’ association. It does not appear from the bill, nor is it claimed by counsel, that there was any want of power to try appellant, or any irregularity in the proceedings which resulted in his conviction and punishment, which being true, we cannot review the proceedings. Board of Trade v. Nelson, 162 Ill. 431.
The decree dismissing the bill for want of equity will be affirmed.
Affirmed.