Western Union Telegraph Co. v. Foster

• Decision Date: 19 June 1916
• Citation: 224 Mass. 365
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court
• Parties: WESTERN UNION TELEGRAPH COMPANY & another v. CALVIN H. FOSTER & others.

224 Mass. 365

WESTERN UNION TELEGRAPH COMPANY & another v. CALVIN H. FOSTER & others.

Supreme Judicial Court of Massachusetts, Suffolk.

June 19, 1916

January 25, 1916.

Present: RUGG, C.

J., DE COURCY CROSBY, PIERCE, & CARROLL, JJ.

Telegraph Company. Ticker Service. Public Service Commission. Carrier, Of messages, Discrimination. Practice, Civil, Parties. Interstate Commerce. Constitutional Law.

Under St. 1913, c 784, Section 2 c, the public service commission have power by an order passed by them to that effect, to compel a telegraph company doing business in this Commonwealth to furnish to a person properly applying for them quotations of the sales upon the New York

Stock Exchange by means of a ticker service on the same terms that such quotations are furnished by it to other persons, although in the contract between the New York Stock Exchange and the telegraph company under which the quotations are obtained by that company it is provided that such quotations shall not be furnished to any subscriber unless

"the subscriber shall have been approved by the exchange" and the person in question was not approved by the exchange as a subscriber.

In a proceeding under St. 1913, c. 784, Section 28, by the public service commissioners to enforce the order of the commission above described it is not necessary that the New York Stock Exchange or its officers and members should be made parties, as, whatever their interest in the subject matter may be, the proceeding deals only with the rights acquired by the telegraph company in the quotations.

In the decision stated above it was pointed out that the contract between the New York Stock Exchange and the telegraph company which was in force when the order of the public service commission was issued was made when

St. 1913, c.

784, was in effect.

Although the sending of stock quotations by the New York Stock Exchange to a telegraph company at its place of business in Boston is interstate commerce, yet the furnishing of such quotations by the telegraph company to its customers or patrons in its ticker service at their Boston offices is domestic business and is analogous to selling at retail in the local market a commodity purchased at wholesale outside the

Commonwealth. Consequently the federal interstate commerce act does not apply to such ticker service and it is subject to the law of this

Commonwealth.

TWO PETITIONS, the first filed in the Supreme Judicial Court on September 27, 1915, under St. 1913, c. 784, Section 27, praying that an order made by the public service commission on September 7, 1915, might be reviewed, annulled, modified or amended, the order referred to being as follows:

"It appearing that the Gold and Stock Telegraph Company, by the Western Union Telegraph Company, lessee, and the United Telegram Company have without just cause denied, and refused to supply to Calvin H. Foster the continuous quotations of the New York Stock Exchange by means of ticker service now furnished and supplied to others, said denial of service is held to constitute an unjust and unlawful discrimination, and it is

"Ordered, That the Gold and Stock Telegraph Company, by The Western Union Telegraph Company, lessee, and The United Telegram Company shall forthwith remove said discrimination;"

And the second petition filed in the same court on October 15, 1915, under Section 28, of the same statute by the public service commissioners against the Western Union Telegraph Company, a corporation organized under the laws of the State of New York and having a usual place of business in the Commonwealth, and the United Telegraph Company, a corporation organized under the laws of the State of New Jersey and having a usual place of business in the Commonwealth, praying for a mandatory injunction ordering the respondents to comply with the order quoted above.

The cases were consolidated by an order of the court and thereafter came on to be heard by Pierce, J. Whereupon, no issue of fact being raised by the pleadings and no evidence being offered by either party, all questions of law involved were reserved by the justice upon the pleadings for determination by the full court.

A. Lord & R.

Taggart (of New York), for the Western Union Telegraph Company and the United Telegram Company.

H. W. Barnum, Assistant Attorney General, for the public service commission.

P. H. Kelley, (J.

L. McLean with him,) for the respondent Poster.

H. S. Robbins (of Illinois), for the Chicago Board of Trade, by permission of the court submitted a brief.

W. F. Taylor (of New York), for the New York Stock Exchange, by permission of the court submitted a brief.

RUGG, C.J. These cases arise under St. 1913, c. 784. In substance the petition by the Western Union Telegraph Company and the United Telegram Company seeks a review and annulment of an order of the public service commission, while the public service commission by its petition seeks enforcement of such order. This order is designed to prevent unfair and unjust discrimination by the telegraph companies. The statute confers upon the public service commission ample powers to that end. It also clothes the Supreme Judicial Court with jurisdiction to review, modify, or amend unlawful rulings and orders of the commissioners and to enforce its valid orders. Sections 2, 20, 27, 28.

The material facts are that the telegraph companies are furnishing to brokers and others in Boston continuous ticker quotations of transactions upon the New York Stock Exchange, which they are enabled to do by means of contracts between the telegraph companies and the New York Stock Exchange. The stock exchange is a voluntary association with its place of business in New York. Quotations of sales of stock on the New York Stock Exchange are collected by employees of the exchange, and, for a substantial consideration, furnished to each of the telegraph companies in New York under contracts which permit them to "furnish said quotations, or any part thereof or any information therein contained, to its patrons by means of tickers, or by telegraph or telephone wires and instruments . . . subject to the limitations, conditions and provisions hereinafter contained," one of which is that such quotations shall not be furnished "to any subscriber thereof unless the subscriber shall have signed in duplicate an application therefor addressed to the Telegraph Company, and the subscriber shall have been approved by the Exchange," the intent of which is declared to be "only to prevent the unlawful or improper use of such quotations." The quotations are collected and delivered almost moment by moment as the sales occur during business hours on the stock exchange. The quotations as thus received in New York are transmitted as soon as may be by each of the telegraph companies to its Boston office. Each of the telegraph companies has a main office in Boston, where there are electrical appliances connected by a system of cables and wires under and across public ways with ticker instruments in the offices of its patrons. The quotations received from New York are delivered into the main Boston office in the Morse code over ordinary telegraph wires. Forthwith an employee operating a keyboard causes them to be written simultaneously by means of ticker instruments upon a tape of paper in the office of each patron, where they can easily be read. The result is that the quotations are reported on the ticker as the sales are made and within a brief time thereafter.

Foster applied to each company for this ticker service upon application forms prescribed by the contracts between the stock exchange and the telegraph companies, which were transmitted by each company to the stock exchange for its approval. The stock exchange did not approve the applications and the telegraph companies refused to install the ticker service. Foster thereupon applied to the public service commission to be furnished with the service. He alleged in his petition that he had been engaged for a long time in the stock brokerage business in Boston, had previously been furnished with tickers, which were removed in 1914; that he had applied for a renewal of the service, had appeared before the appropriate committee of the New York Stock Exchange on two different occasions where he had submitted himself to examination and answered all questions asked; that in conducting his business he always has complied with the laws of this Commonwealth, and does not desire the quotations and ticker service for any unlawful or improper purpose, but for use in his legitimate brokerage business, which will suffer irreparable injury if he is unable to procure it. These allegations were not denied before the commission and cannot be challenged seriously here. The commission found that the petitioner was ready and willing to pay the price charged to other patrons of the telegraph companies for ticker service, and to comply with all reasonable rules and regulations, and that the telegraph companies simply had been notified that the exchange had disapproved the petitioner's applications, without stating any reason. The commission found that there was no evidence that the petitioner desired the quotations for unlawful or improper use, and that the telegraph companies were guilty of unjust and illegal discrimination in that, without just cause, they denied and refused to supply to Foster the quotations of the stock exchange by means of ticker service, and ordered the companies forthwith to remove such discrimination. The cases must proceed upon the footing that these findings of fact are true.

The quotations when collected and tabulated by the exchange, constitute its private property. As such they are entitled to every protection afforded by...