L. R. A. 622, 62 N. W. 506; Nash v. Page, 80 | 145 N. Y. 267, 27 L. R. A. 437, 39 N. E. Ky. 539, 44 Am. Rep. 490; Commercial Un- 1062. ion Teleg. Co. v. New England Teleph. & Teleg. Co. 61 Vt. 241, 5 L. R. A. 161, 17 Atl. 1071; State cx rel. Webster v. Nebraska Teleph. Co. 17 Neb. 136, 52 Am. Rep. 404, 22 N. W. 237; Ruggles v. People, 91 Ill. 256; Chicago Dock & Canal Co. v. Garrity, 115 Ill. 155, 3 N. E. 448; Munn v. People, 69 Ill. 80; State ex rel. Atty. Gen. v. Columbus Gaslight | Coke Co. 34 Ohio St. 572; Zanesville v. Zanesville Gaslight Co. 47 Ohio St. 10, 23 N. E. 55.

Appellee in the conduct of its business, and as shown by its by-laws and contracts, is and has created to itself a monopoly, and is violating the laws of the state of Illinois, thereby subjecting its charter to forfeiture, against which any stockholder has the right to an injunction.

Appellee should have been enjoined from depriving appellant of the news service. New York & C. Grain & Stock Exchange v. Chicago Bd. of Trade, 127 Ill. 153, 2 L. R. A. 411, 19 N. E. 855; Friedman v. Gold & Stock Teleg. Co. 32 Hun, 4; Smith v. Gold & Stock Teleg. Co. 42 Hun, 454; Huston v. Reutlinger, 91 Ky. 333, 15 S. W. 867; Walker v. Converse, 148 Ill. 622, 36 N. E. 202; McMillan v. James, 105 Ill. 194; Cushman v. Bonfield, 139 Ill. 219, 28 N. E. 937; Holden v. Holden, 24 Ill. App. 106.

Appellee's contract with appellant, so far as relates to the sale of stock, and the bylaws of appellee in reference thereto, are void.

McNulta v. Corn Belt Bank, 164 Ill. 427, 45 N. E. 954.

The business of a telegraph company is a public business.

People ex rel. Cairo Teleph. Co. v. Western U. Teleg. Co. 166 Ill. 15, 36 L. R. A. 637, 46 N. E. 731; Danville v. Danville Water Co. 180 Ill. 235, 54 N. E. 224, 178 Ill. 299, 53 N. E. 118; Rogers Park Water Co. v. Fergus, 178 Ill. 571, 53 N. E. 363; People ex rel. Mcllhany v. Chicago Live Stock Exchange, 170 Ill. 556, 39 L. R. A. 373, 48 N. E. 1062; United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540.

The appellee has by its by-laws created a monopoly.

Holden v. Alton, 179 Ill. 318, 53 N. E. 556; Adams v. Brenan, 177 Ill. 194, 42 L. R. A. 718, 52 N. E. 314; Fishburn v. Chicago, 171 Ill. 338, 39 L. R. A. 482, 49 N. E. 532; People ex rel. McIlhany v. Chicago Live Stock Exchange, 170 Ill. 556, 39 L. R. A. 373, 48 N. E. 1062; Minnesota Tribune Co. v. Associated Press, 55 U. S. App. 136, 83 Fed. Rep. 350, 27 C. C. A. 542; Craft v. McConoughy, 79 Ill. 348, 22 Am. Rep. 171; United States v. Addyston Pipe & S. Co. 54 U. S. App. 723, 85 Fed. Rep. 271, 29 C. C. A. 141, 46 L. R. A. 122; Bishop v. American Preservers' Co. 157 Ill. 284, 41 N. E. 859; Ford v. Chioago Milk: Shippers' Asso. 155 Ill. 166, 27 L. R. A. 298. 39 N. E. 651; People v. Milk Exchange, 145 Minnesota Tribune Co. V. Associated N. Y. 267, 27 L. R. A. 437, 39 N. E. 1062; Press, 55 U. S. App. 136, 83 Fed. Rep. 350, People ex rel. Peabody v. Chicago Gas Trust 27 C. C. A. 542; Ford v. Chicago Milk ShipCo. 130 Ill. 268, 8 L. R. A. 497, 22 N. E. pers' Asso. 155 Ill. 166, 27 L. R. A. 298, 39 798; More v. Bennett, 140 Ill. 69, 15 L. R. A. N. E. 651; Bishop v. American Preservers' 361, 29 N. E. 888; Distilling & Cattle Feed Co. 157 Ill. 284, 41 N. E. 765; Craft v. Mcing Co. v. People ex rel. Moloney, 156 Ill. Conoughy, 79 Ill. 348, 22 Am. Rep. 171; More 448, 41 N. E. 188; Butchers' Union 8. H. & v. Bennett, 140 Ill. 69, 15 L. R. A. 361, 29 L. S. L. Co. v. Crescent City L. S. L. & S. H. N. E. 888; Jackson v. Stanfield, 137 Ind. Co. 111 U. S. 746, 28 L. ed. 585, 4 Sup. Ct. 592, 23 L. R. A. 588, 36 N. E. 345,37 N. E. 14. Rep. 652; Marseilles Land & Water Power Appellee should be enjoined from enforcCo. v. Aldrich, 86 Ill. 504; Davis v. Old Col-ing the by-laws so far as they tend to create ony R. Co. 131 Mass. 259, 41 Am. Rep. 221; Stewart v. Erie Transp. Co. 17 Minn. 398. Appellee is violating the anti-trust laws of the state of Illinois and of the United States.

United States v. Trans-Missouri Freight Asso. 166 U. S. 290, 41 L. ed. 1007, 17 Sup. Ct. Rep. 540; Hurd's Stat. 1899, p. 596.

a boycott against the appellant. We only need to refer to the case of

Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 42 L. R. A. 407, 77 N. W. 13.

A corporation organized under the laws of this state can only adopt such by-laws as are necessary to carry out the object and Appellant is entitled to injunction to en- purpose of its creation, and it cannot adopt join appellee from prohibiting any of its by-laws that are illegal or contrary to pubmembers from dealing or having business re-lic policy. Neither can it make any conlations with the appellant; or, in other tract in furtherance of its business that is words, it is entitled to enjoin a boycott. illegal or contrary to the public policy of this state.

Jackson v. Stanfield, 137 Ind. 592, 23 L. R. A. 588, 36 N. E. 345, 37 N. E. 14; State v. Glidden, 55 Conn. 46, 8 Atl. 890; Beck v. Railway Teamsters' Protective Union, 118 Mich. 497, 42 L. R. A. 407, 77 N. W. 13: Vegelahn v. Guntner, 167 Mass. 82, 35 L. R. A. 722, 44 N. E. 1077; Minke v. Hopeman, 87 Ill. 450, 29 Am. Rep. 63; Barrett v. Mount Greenwood Cemetery Asso. 159 Ill. 385, 31 L. R. A. 109, 42 N. E. 891; Hopkins v. Oxley Stave Co. 49 U. S. App. 709, 83 Fed. Rep. 912, 28 C. C. A. 99; People v. Milk Exchange,

In so far as by-laws are contrary to the laws of this state or in contravention of its public policy, any stockholder may enjoin the enforcement of the same.

McNulta v. Corn Belt Bank, 164 Ill. 427, 45 N. E. 954; Morgan v. Struthers, 131 U. S. 246, 33 L. ed. 132, Sup. Ct. Rep. 726; Feckheimer v. National Exchange Bank, 79 Va. 80; Re Klaus, 67 Wis. 401, 29 N. W. 582; Humphreys v. McKissock, 140 U. S. 304, 35 L. ed. 473, 11 Sup. Ct. Rep. 779.

A. 722, 44 N. E. 1077; Hopkins v. Oxley Stave Co. 49 U. S. App. 709, 83 Fed. Rep. 912, 28 C. C. A. 99; Barrett v. Mount Greenwood Cemetery Asso. 159 Ill. 385, 31 L. R. A. 109, 42 N. E. 891; Minke v. Hopeman, 87 Ill. 450, 29 Am. Rep. 63.

The courts will restrain a party, upon proper cause, from doing certain acts in violation of his agreement, not requiring performance of skill, personal labor, or judg

ment.

R. A. 460, 50 Pac. 633; Vincent v. Chicago & 4. R. Co. 49 Ill. 33.

Messrs. John P. Wilson and T. A. Moran for appellee.

Phillips, J., delivered the opinion of the court:

The Inter-Ocean Publishing Company, a corporation organized under the laws of the state of Illinois, is engaged in publishing Western U. Teleg. Co. v. Union P. R. Co. as the Daily Inter-Ocean and the Weekly two newspapers in the city of Chicago, known 1 McCrary, 558, 3 Fed. Rep. 429; Singer Inter-Ocean, which have a wide circulation Sewing-Mach. Co. v. Union Button-hole & in the states and territories of the United Embroidery Co. Holmes, 253, Fed. Cas. No. States. The Associated Press is a corpora12,904; Fry, Spec. Perf. § 863; New York tion organized under the laws of the state of & C. Grain & Stock Exchange v. Chicago Bd. Illinois in 1892. The object of its creation of Trade, 127 Ill. 153, 2 L. R. A. 411, 19 N. E. 855; Friedman v. Gold & Stock Teleg. Co.mation and news; to vend, supply, distribute, was "to buy, gather, and accumulate infor32 Hun, 4; Smith v. Gold & Stock Teleg. Co. and publish the same; to purchase, erect, 42 Hun, 454; Nash v. Page, 80 Ky. 539, 44 lease, operate, and sell telegraph and teleAm. Rep. 490: Huston v. Reutlinger, 91 Ky. phone lines and other means of transmitting 333. 15 S. W. 867: Vincent v. Chicago & A. news; to publish periodicals; to make and R. Co. 49 111. 33: Hagan v. Fayette Gas-Fuel deal in periodicals and other goods, wares, Co. 21 Pa. Co. Ct. Rep. 503; Southern Exp. and merchandise." It has about eighteen Co. v. St. Louis, I. M. & S. R. Co. 3 McCrary by-laws with about seventy-five subdivisions 147, 10 Fed. Rep. 210, 869; Re Lennon, 166 thereof. The stockholders of the Associated U. S. 548, 41 L. ed. 1110, 17 Sup. Ct. Rep. Press are the proprietors of newspapers, and 658; Robinson v. Byron, 1 Bro. Ch. 588; Her- the only business of the corporation is that vey v. Smith, 1 Kay & J. 389; Beadle v. enunciated in its charter, and is mainly buyPerry, L. R.3 Eq. 465; Whitecar v. Michenor, ing, gathering, and accumulating news, and 37 N. J. Eq. 6; Broome v. New York & N. J. furnishing the same to persons and corpoTeleph. Co. 42 N. J. Eq. 141, 7 Atl. 851; rations who have entered into contract thereToledo, A. A. & N. M. R. Co. v. Pennsylvania for. It may furnish news to persons and Co. 54 Fed. Rep. 730, 19 L. R. A. 395; Lough corporations other than those who are its v. Outerbridge, 143 N. Y. 271, 25 L. R. A. stockholders, and the term "members," used 674, 38 N. E. 292; Gregsten v. Chicago, 145 in its by-laws, applies to proprietors of newsIll. 451, 34 N. E. 426; Brass v. North Da- papers, other than its stockholders, who have kota ex rel. Stoeser, 153 U. S. 391, 38 L. entered into contracts with it for procuring ed. 757, 14 Sup. Ct. Rep. 857; Keeler v. Clif-news. It does not appear that it has availed ford, 165 Ill. 547, 46 N. E. 248; Pollak v. itself of any of the powers conferred by its Brush Llectric Asso. 128 U. S. 446, 32 L. charter other than that of gathering news ed. 474, 9 Sup. Ct. Rep. 119; Paige v. Hier- and distributing the same to its members. onymus, 180 Ill. 637, 54 N. E. 583; Pull-Under the by-laws of appellee the Interman's Palace Car Co. v. Central Transp. Co. 171 U. S. 138, 43 L. ed. 108, 18 Sup. Ct. Rep. 808; Hewitt v. Dement, 57 Ill. 500; Pom. Eq. Jur. § 942; Cox v. Donnelly, 34 Ark. 762; Thomas v. Richmond, 12 Wall. 355, 20 L. ed. 456.

A court of equity will enjoin the breach of a negative covenant when it is expressed or can be fairly implied from the stipulations of the parties, and injury will result to the complainant by its breach.

Ocean Publishing Company became a stockholder. Among the by-laws having reference to stockholders are the following:

"Art. 11, § 8. Sale or Purchase of Specials. No member shall furnish, or permit anyone to furnish, its special or other news to, or shall receive news from, any person, firm, or corporation which shall have been declared by the board of directors or the stockholders to be antagonistic to the association; and no member shall furnish news to any other perPostal Teleg. Cable Co. v. Western U. Tel- son. firm, or corporation engaged in the busieg. Co. 155 Ill. 335, 40 N. E. 587; Consoli-ness of collecting or transmitting news, exdated Coal Co. v. Schmisseur, 135 Ill. 371, cept with the written consent of the board 25 N. E. 795. of directors."

When a corporation takes to itself the power of eminent domain it needs no further evidence to show that it is created for public purposes. Its public character is then and at once established. The fact that it does not see fit to exercise all of the powers conferred upon it does not change the character of its business which it does perform.

"Art. 14, § 1. Board May Suspend. The board of directors shall have the power, by a two-thirds vote of the whole board, to suspend a member, or impose upon him a fine of not exceeding $1,000, for furnishing news to any person or association antagonistic or in opposition to the Associated Press, or for purchasing news from any person or organGibbs v. Consolidated Gas. Co. 130 U. S. ization formally declared by the board of di397, 32 L. ed. 979, 9 Sup. Ct. Rep. 553; Thom-rectors or by the stockholders of the assoas v. West Jersey R. Co. 101 U. S. 71, 25 L. ed. 950; 4 Thomp. Corp. § 5367; San Diego Water Co. v. San Diego, 118 Cal. 556, 38 L.

ciation, at any annual or special meeting, to be in such antagonism or opposition, or for any other violation of the by-laws or his

contract: provided always, that ten days' notice, in writing, of a complaint be first served upon the offending member; and said member shall have an opportunity to be heard in his own defense, and, if said member shows that the offense was unintentional, and shall have discontinued the same, he shall not be suspended."

time be on the membership roll of said party
of the first part, and that it will keep and
observe and perform all the requirements of
the by-laws of said party of the first part
now or hereafter in force during the life of
this contract."

Contracts of substantially the same character have been entered into from time to On March 2, 1893, the Associated Press en-time between the Associated Press and most tered into an agreement with the Inter- of the leading newspapers throughout the Ocean Publishing Company, by which it sold United States, to whom, under its charter to the latter its night news report for publi- and by-laws and under its contracts, cation in the two newspapers for the term of it sells and vends its news. Similar associninety-two years, which the Inter-Oceanations for gathering and selling and vending Company agreed to receive and pay for at news, to a limited extent, exist in other cities the rate of $102 per week, which sum was than Chicago, but none of them so widely exliable to be increased 50 per cent. The As- tended. Among these are the Sun Printing sociated Press agreed to furnish to the & Publishing Association of New York City, Inter-Ocean Company local and telegraphic the New York Sun of New York City, and news within a radius of 60 miles of Chicago, the Laffan News Bureau of New York City. in accordance with its by-laws. The con- These three latter associations have been detract between the Inter-Ocean Company and clared to be antagonistic to the Associated the Associated Press, among other provi- Press by the board of directors of the latter. sions contained the following: "Sixth. Said News of an important character not gathered party of the second part covenants and by the Associated Press was gathered by a agrees that it will not furnish, before pub- certain alleged antagonistic association, and lication, any news to any person or corpo- the Inter-Ocean Publishing Company, for the ration engaged in the business of collecting purpose of furnishing its readers with inforor transmitting news, except upon the writ- mation and news gathered from various ten consent of the board of directors of the points and sources, in addition to the news party of the first part first had and obtained; purchased by it from the Associated Press, and that it will not furnish to any person also purchased and published news obtained any of the news received by it under this by it from the Sun Printing & Publishing contract before publication by it; and that it Association of New York City, but did not will not furnish its special or other news to furnish news to the latter association, or or receive news from any person or corpor- to any of the associations antagonistic to the ation which shall have been declared by the Associated Press. The Chicago Herald Coinboard of directors of said party of the first pany and the Chicago Daily News Company part antagonistic to said party of the first made complaint to the Associated Press that part, after having received notice of such dee the Inter-Ocean Publishing Company was laration. Seventh. It is further mutually publishing news procured by it from the Sun agreed between the parties hereto that the Printing & Publishing Association of New rights, duties, and obligations of the respec- York, the New York Sun of New York tive parties hereto, except as hereinbefore City, and the Laffan News Bureau of New specifically provided for, shall be controlled York City, and asked that the Inter-Ocean and governed by the by-laws of said party Publishing Company's contract and § 8 of arof the first part now or hereafter in force, ticle 11 of the by-laws should be enforced. during the life of this contract; and that The Associated Press gave notice to the Inthe right to receive news under this contract ter-Ocean Publishing Company that a meetmay be suspended or terminated in the man- ing of its board of directors would be held ata ner and for the causes specified in said by time and place mentioned, to take action on laws." "Ninth. Said party of the first part the complaints of the Chicago Herald Compromises and agrees not to furnish any news pany and the Chicago Daily News Company. report to any newspaper published in the Before the time set for hearing, the Intersaid territory described in this contract not Ocean Publishing Company filed its bill for now entitled to receive the same under the an injunction against the Associated Press by-laws of said party of the first part with from suspending or expelling it from its out the written consent of the said party of membership, and from refusing to furnish the second part or its assigns. Tenth. Said it news according to the terms of its conparty of the second part has assigned and tract, and from doing any act or thing tendtransferred its stock in the said party ing to deprive it of the news gathered by apof the first part to the said party of the pellee, and for such other relief, general and first part, which stock is to be held by said special, as might be just and equitable. The party of the first part as security for the bill set up the facts hereinbefore stated, and performance by said party of the second part set out the by-laws of the appellee in full, of this contract on its part. Said party of and alleged that the appellee had been able the second part, in consideration of the mak- to control the business of buying and accuming of this contract by said party of the first ulating news in Chicago and selling the part, hereby covenants and agrees that it same, and has thus created in itself an exwill not sell or part with any interest in said clusive monopoly in that business, and, to stock to any party who shall not be the pro- preserve such monopoly, had declared the prietor of a newspaper which shall at the Sun Printing & Publishing Association a ri

val or competitor in business, and antago- | use, and must, to the extent of that interest, nistic to it, and sought to prohibit its mem- submit to be controlled by the public for the bers from buying news therefrom, under common good, as long as such use is mainpain of suspension or expulsion; alleged that tained. The manner in which it is devoted appellee had at various times, by threats of to a use in which the public has an interest suspension and expulsion, compelled divers may be very diverse, and the public interest of its members to cease buying the special in such use may be of a widely variant charnews of the Sun Printing & Publishing As-acter; but where the use is one in which the sociation under its contracts with its mem- public is interested, or has an interest, pubbers. The bill set out the contracts and lic control is necessary for the common good. names of such members, and alleged that the Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77. notice served on appellant for a hearing on The appellee corporation voluntarily sought the complaints against it is similar to the corporate existence to engage in an enteraction of appellee against other members prise which invested it with, among others, who were forced to cease buying special news the power of eminent domain. It was orfrom the Sun Printing & Publishing Associa-ganized, among other things, to purchase, tion; that appellant is in duty bound, both erect, lease, operate, and sell telegraph and to its patrons and to the public, to publish telephone lines,-a business which is essenall the news it can gather, and, if not able tially public in its nature, and renders a to obtain such news from one source, it corporation so engaged amenable to public must. in justice to its patrons and the pub-control. While under the averments of the

lic, resort to other sources; that the news bill and answer and affidavits, the appellee which it obtained from appellee it was un-corporation has only engaged in business to able to obtain from any other source, and the extent of its power "to buy, gather, and appellee would not furnish the same to ap- accumulate information and news; to vend, pellant unless it executed the contract here- supply, distribute, and publish the same; inbefore mentioned, because of which appel- and has not attempted to purchase, erect, lant was forced to and did execute such con- lease, or sell telegraph and telephone lines, tract; that appellee does not furnish all the-it is important to determine the characnews obtainable and desired by appellant ter of the corporation under its charter and under that contract, and to obtain such under the business in which it is actually enother news appellant was forced to resort to gaged. The organization of such a method the Sun Printing & Publishing Association of gathering information and news from so of New York; that the right to receive the wide an extent of territory as is done by the news gathered by appellee, and publish the appellee corporation, and the dissemination same in its newspaper is a valuable prop-of that news, require the expenditure of vast erty and property right, and appellant is sums of money. It reaches out to the varforced to obtain the news not obtainable ious parts of the United States, where its from appellee, and which is absolutely need-agents gather news which is wired to it, and ed in publishing its newspaper, from the Sun through it such news is received by the vaPrinting & Publishing Association; that the rious important newspapers of the country. appellee is attempting to force appellant to Scarcely any newspaper could organize and cease taking news from the latter associa- conduct the means of gathering the information, but to do so would work irreparable tion that is centered in an association of the damage and injury to appellant, and would character of the appellee, because of the prevent it from furnishing needed, import- enormous expense, and no paper could be reant, and necessary news to the public, and garded as a newspaper of the day unless it would tend to create in favor of appellee a had access to and published the reports from monopoly. The appellee filed an answer to such an association as appellee. For news the bill. A hearing was had upon the bill gathered from all parts of the country the and answer, both of which were sworn to, various newspapers are almost solely deand certain affidavits which were read and pendent on such an association, and, if they used as depositions, and a decree was ren-are prohibited from publishing it, or its use dered dismissing the bill for want of equity. On appeal to the appellate court for the first district the decree was affirmed, and this appeal is prosecuted.

is refused to them, their character as newspapers is destroyed, and they would soon become practically worthless publications. The Associated Press, from the time of its It has been uniformly held that a tele-organization and establishment in business, graph or telephone company is bound to sold its news reports to various newspapers treat all persons and corporations alike, and who became members, and the publication of without discrimination, in its business of re- that news became of vast importance to the ceiving and transmitting messages. The public, so that public interest is attached to business of such a company is public in its the dissemination of that news. The manner nature, and a public interest is impressed in which that corporation has used its franthereon to such an extent that no discrimin-chise has charged its business with a public ation can be made against persons or corpor-interest. It has devoted its property to a ations. People ex rel. Cairo Teleph. Co. v. public use, and has, in effect, granted to the Western U. Teleg. Co. 166 Ill. 15, 36 L. R. public such an interest in its use that it must A. 637, 46 N. E. 731. Where one is the own-submit to be controlled by the public for the er of property which is devoted to a use in common good, to the extent of the interest which the public has an interest, he, in ef- it has thus created in the public in its prifect, grants to the public an interest in such vate property. The sole purpose for which