3 N.Y.S. 633 | N.Y. Sup. Ct. | 1888
This action was originally commenced by the plaintiff, as president of the Consolidated Stock & Petroleum Exchange, against the Commercial Telegram Company, to restrain that company from removing from the floor of the exchange certain printing telegraph instruments called “ tickers, ” by which instruments the quotations of sales of stocks, bonds, etc., on the New York Stock Exchange were transmitted to the plaintiff’s exchange. A temporary injunction was granted in the action, which "still remains in force.. No issue is made with the plaintiff by the answer of the telegram company upon any fact alleged as a basis of the relief sought, nor does that company dispute the propriety of that injunction, nor deny that the plaintiff is not entitled against it to the judgment asked for. Subsequent to the granting of the injunction against said company the defendant Smith, as president of the New York Stock Exchange, was made a defendant to the action, and upon allegations in the amended complaint, to the effect that the New York Stock Exchange threatened to prevent the said telegram company from furnishing to the plaintiff the information as to transactions on its floor, and to cut off its-wire and remove said company from its premises, an injunction was granted, restraining any such action on the part of said defendant.
The relief now sought by the judgment of this court is that the defendants-be perpetually enjoined from doing any act which will interfere with or prevent the plaintiff’s exchange from receiving the quotations of transactions on the New York Stock Exchange “as usually or regularly transmitted to the-public over and by means of the wires and instruments by the defendants, or any of them, maintained and used for that purpose,” and to perpetually enjoin the New York Stock Exchange from doing any act which will “interfere with, hinder, or delay the telegram company in collecting and distributing the said quotations as the usual and regular course of its business, and' furnishing the said consolidated exchange therewith.” I have quoted the-language of the prayer of the complaint, as it indicates what the pleader believes to be the rights, duties, and obligations of the several parties to each other in reference to the receipt and distribution of the transactions taking place upon the New York Stock Exchange; and it is very evident that that part of the relief which seeks to restrain the New York Exchange from removing the Commercial Telegram Company from its premises can be sustained only-on the ground that the business transacted upon such exchange is of such a character that any person has a right, not only by himself, but by his selected agents, to have access to, and be present on, the floor of the exchange at all times during the transaction of business there. While it is true that the complaint alleges a contract between the defendants under which the telegram company engaged in business upon the “floor” of the exchange, in collecting and transmitting by its “tickers” the quotations of transactions on said exchange, the evidence shows, without contradiction, that all reports and quotations of transactions upon the exchange were received by the telegram company for transmission to such persons only as should be approved of by such exchange, and that the “tickers” of said company were to be located in such places only as should be approved of by the exchange. There could
Independent of the contract, the right of the plaintiff to have these quotations through the medium of the telegram company cannot be maintained; for, assuming that the Hew York Exchange is under an obligation to make public the prices at which stocks are sold on its floor, it has a right to control absolutely the channel through which such quotations shall be given out. It may, therefore, select one “ticker” company, and give to it all the privileges of collecting news on its floor, and exclude all others. Upon this question, The Express Cases, 117 U. S. 1, 6 Sup. Ct. Rep. 542, 628, is a direct authority. The obligation to admit to its floors all ticker companies could be no-greater than the obligation of a railroad company to carry all express companies. But in the case cited the supreme court held that the railroads were, not bound to carry all express companies, and on the same principle the stock exchange would be under no obligation to admit to its floor all ticker companies. Where would the line be drawn? If ticker companies have the right of admission to collect the quotations, individuals have the same. The exchange would swarm with outsiders, the rights of members be seriously impaired, and private property destroyed. Very slight reflection will convince any one that, if these quotations are to be given to the public, it must be under such reasonable regulations as the exchange should impose. I regard,therefore, as immaterial to the decision of the case, the fact that the Hew1 York Exchange had under consideration the making of a contract with the' Western Union Telegraph Company, by which it would bestow upon that-company the exclusive right of collecting the quotations of transactions on its- " floor, and excluding therefrom the Commercial Telegram Company and all-otliers, only so far as it contemplated limiting that company in the distribution of quotations to such persons as were designated by the exchange. If the making public the quotations of prices on its floor is a public duty, resting upon said exchange, it could not limit or control the designation of persons who should receive them. All would be entitled to them upon the same terms as they were generally given out, and the Western Union Company, or any other person or corporation that should be made the channel through-which the quotations would pass from the floor of the exchange to the public,could not discriminate in the distribution, but would rest under the public duty to serve all alike. If, however, no public duty rests upon the exchange-to make public the quotations of prices, then it may do with them as it pleases;serve one man and refuse another; and any person or corporation that it se-lects to distribute them, receives them solely as the agent of the exchange,- and can furnish them to such persons only as the exchange directs. The right-of every man to do what he will with his own, not interfering with the re-ciprocal rights of others, is accepted among the fundamental principles of our law.
We can also dismiss with a very brief reference the grounds of relief set-forth in the eleventh and fourteenth subdivisions of the complaint. Stripped* of all verbiage, the substance of those allegations is that substantially the-same class of securities are dealt in in both exchanges; that the Hew York-Exchange, by reason of its high business character, and the great amount of business done upon its floor, fixes the market value for such securities; that the members of the Consolidated Exchange cannot buy or sell such securities for their customers on the floor of their exchange, unless they know the quo= tations of prices ruling in the Hew York Exchange; and, unless they have means of promptly ascertaining the prices at which sales are there made, the
We come, therefore, to the real question in the case, which is, does any public duty rest upon the Hew York Exchange to make known the prices of securities dealt in by members on its floor? The direct authorities upon this ■question are few. With the exception of the decisions that have been made in the litigation between the parties to this action, the only direct authorities to which I have been referred, or which I have been able to find, arose in the state of Illinois. In two" cases in the circuit court of that state it has been • decided that the Chicago Board of Trade could not exercise any discrimination as to who should receive its market quotations, or as to what telegram companies should be allowed facilities for distributing the information to the public. Stock Exchange v. Telegraph Co., reported in note to Bryant v. Telegraph Co., 17 Fed. Rep. 830; Murphy v. Board, 20 Chi. Leg. N. No.7. But in the case of Stock Exchange v. Board, in .the appellate court of the First* district of that state, directly the opposite was held, and an injunction against the board of trade was dissolved; the court holding that the board of trade was a private corporation, in whose affairs no one was especially interested ■ except its members, and that it had the right of discrimination in the distribution of its market reports. This decision affirmed an order of Justice Bagby, ■dissolving an injunction against the board of trade, and must be regarded as ■overruling the decision of Justice Collins in the Murphy Case, and Chancellor Tuley in Stock Exchange v. Telegraph Co. See Const. Ill. art. 11, § 6; 1 ■Gen. St. p. 702, § 28. To the same effect are the decisions of the circuit court ■of the United States. Bryant v. Telegraph Co., 17 Fed. Rep. 825; Stock Exchange v. Board, 15 Fed. Rep. 847; Stock Exchange v. Telegraph Co., 22 Fed. Rep. 25. In these cases it was held that the board of trade was-a private •corporation, and could give or withhold from the public its transactions, and that it might give the transactions to the public through such agents or upon •such conditions as the board may deem advisable. In this state we have the •decision of Justice Dykman, made on granting the temporary injunction in this action, against the stock exchange, holding the doctrine of the public ■character of the business of the exchange, and its duty to make public its ■transactions; and the decision of the general term of the First department, in the case of Telegram Co. v. Stock Exchange, 47 Hun, 494, holding the contrary doctrine, and that there was no duty on the defendant to make known the transactions taking place on its floor. The weight of judicial authority is ■■thus adverse to the plaintiff’s claim. The cases in the circuit court of Illinois, and also the decision of Justice Dykman, were based on the doctrine of Munn v. Illinois, 94 U. S. 130, in which it was held that property, when used in a manner to make it of public consequence and affect the community at large, became clothed with a public interest, and might be controlled by the
1. As to the character of the organization. The New Y ork Stock Ex chan ge is not a corporation. It is a voluntary association of individuals, engaged in business as brokers in stocks, bonds, and other securities. It is not the outgrowth of any public demand, serves no public interest, has sought no special privileges or power, and has asked and obtained nothing from the state, except that protection which the law affords every citizen, and exists solely for the purpose of affording its members facilities for the transaction of their individual business. The nature of the organization is thus described by the court of appeals: “The New York Stock Exchange is a voluntary association of individuals, united, without a charter, in an organization for the purpose of affordingits members certain facilities for the transaction of their business as brokers in stocks and securities, and a convenient exchange or sales-room for the conduct of such transactions. It cannot be said to be strictly a copartnership, for its objects do not come within the definition of one. A copartnership results from a contract between the parties, by which they agree to combine their property or labor, or both, to some common enterprise, and for a common profit, to be shared in the proportion stated in their contract. The objects of a voluntary association of brokers do not, however, involve any such combination, or any communion of profits from the business transacted by the members. Like a business club, its principal object is the promotion of the convenience of its members, by furnishing facilities which aid them in doing their business, and are therefore of benefit to them.” In the exercise of its ordinary functions it does not usually engage in any business, except such as are incidental to furnishing proper and convenient facilities to its members. It is not interested in the business transacted between its members, and makes no sales or purchases of any securities dealt in within its walls, and is under no obligation to acquire any information as to any trans> action taking place there, or to ascertain the prices of any securities therein bought or sold. In all this there is plainly no public service, and in accomplishing the object and purpose of its organization no public duty.