Barclay v. Smith

• Decision Date: 30 September 1883
• Citation: 1883 WL 10310,107 Ill. 349,47 Am.Rep. 437
• Parties: WILLIAM H. BARCLAYv.LAFAYETTE H. SMITH.
• Court: Illinois Supreme Court

107 Ill. 349

1883 WL 10310 (Ill.)

47 Am.Rep. 437

WILLIAM H. BARCLAY

v.LAFAYETTE H. SMITH.

Supreme Court of Illinois.

Filed at Ottawa May 10, 1883.Rehearing denied September Term, 1883.

APPEAL from the Appellate Court for the First District;--heard in that court on appeal from the Superior Court of Cook county; the Hon. GEORGE GARDNER, Judge, presiding.

Messrs. LAWRENCE, CAMPBELL & LAWRENCE, and Mr. JOHN H. BATTEN, Jr., for the appellant:

A membership in the board of trade of the city of Chicago is not property which can be subjected to the payment of debts by process of law, or order, or decree of court. Nichols v. Eaton, 91 U. S. 716; Deere v. Chapman, 25 Ill. 610; Good v. Fogg, 61 Id. 451; Const. 1870, art. 4, sec. 32; Rev. Stat. chap. 52; Gallagher v. Lane, 16 Blatchf. C. C. 410; Hyde v. Woods, 94 U. S. 523; Nicholson v. Gooch, 5 El. & Bl. 999; Ritterband v. Boggett, 4 Abb. N. C. 67; In re Sutherland, 6 Biss. 526; Thompson v. Adams,93 Pa. St. 55; Pancoast v. Gowen, Id. 66; Barry v. Kennedy, 2 Abb. Pr. (N. S.) 421; People ex rel. v. Board of Trade, 80 Ill. 134; Baxter v. Board of Trade, 83 Id. 146; Chase et al. v. Cheney, 58 Id. 509; Robinson v. Yates City Lodge, 86 Id. 598; Duvergier v. Fellows, 5 Bing. 248; Goesele v. Bimeler, 14 How. 590; Bennett v. Am. Art Union, 5 Sandf. 614; Collyer v. Fallon, Turn. & Russ. 459; Boss v. Hopkinson, 18 W. R. 725; Glover v. Moore, 39 L. J. Chan. 98; White v. Brownell, 4 Abb. Pr. (N. S.) 162; Nagle v. Stagg, 15 Id. 348; Morewetz on Priv. Corp. sec. 351.

The complainant in this case has a complete and adequate remedy at law, and is therefore not entitled to maintain a creditor's bill. Rev. Stat. chap. 77, secs. 52, 55; Story's Eq. Jur. secs. 546-549.

Mr. C. BECKWITH, also, for the appellant.

Mr. MORTON CULVER, for the appellee:

The right of membership in a board of trade or stock exchange is an incorporeal hereditament, and is property which may be taken for the payment of the holder's debts in case of his bankruptcy or insolvency. Hyde v. Woods, 2 Sawyer, 655; Same case, 4 Otto, 523; Ritterband v. Boggett, 4 Abb. N. C. 67; In re Ketchum, 1 Fed. Rep. 840; Gallagher v. Lane, 16 Blatchf. C. C. 410; In re Warder, 10 Fed. Rep. 275.

Mr. JUSTICE CRAIG delivered the opinion of the Court:

There is but one question presented by this record, and that is, whether a certificate of membership in the board of trade of the city of Chicago, is property, which is liable to be subjected to the payment of the debts of the holder by legal proceedings.

The Board of Trade of Chicago is a corporation created by a special act of the legislature of the State, with power to sue and be sued, to purchase and hold property not to exceed at any time $200,000. The objects of the corporation, as declared by the charter and by-laws, are “to maintain a commercial exchange; to promote uniformity in the customs and usages of merchants; to inculcate principles of justice and equity in trade; to facilitate the speedy adjustment of business disputes; to acquire and to disseminate valuable commercial and economic information; and generally, to secure to its members the benefits of coöperation in the furtherance of their legitimate pursuits.” By the 12th section of the charter the corporation is prohibited from transacting any business excepting such as is usual in the management of boards of trade or chambers of commerce. No dividends whatever are made among the members of the corporation. No person can become a member unless he receives the votes of not less than ten of the board of directors. A certificate of membership is transferable on the books of the association to any person eligible to membership who may be approved by the board of directors, after due notice. The corporation has power to make by-laws for the management of its business, and the mode in which it shall be transacted. Under the by-laws the board of directors are required to provide necessary rooms and offices for the purposes of the association, which shall be kept open on all business days during certain hours, for the admission of the members.

From an examination of the charter and by-laws of the corporation it is apparent that no member receives any pecuniary profit from the corporation, or from its capital or revenue, except such advantage in the way of trade that he may derive from the mere privilege of being a member, and from being admitted to transact business in the rooms of the board. If dividends were authorized to be declared among the members, as stockholders, of the earnings or accumulations of money or property, there might be some ground for holding that a certificate of membership was property, and liable to be taken for the debts of the member; but such is not the case. However much money or property may be accumulated by the board, it is powerless to declare a dividend among its members.

When the nature and object of a certificate of membership are understood, can it, upon any reasonable principle, be said to be property? In Bouvier's Law Dictionary, the author, under the head of “Property,” gives a definition, as follows: “The right and interest which a man has in lands and chattels to the exclusion of others.” The author also announces the rule that property, considered as an exclusive right to things, contains not only the right to use those things, but a right to dispose of them as the owner may desire. The certificate of membership is neither lands nor chattels, nor can a member dispose of his membership as he pleases. A sale can only be made to such person as the board, through its directors, may determine. If, then, a certificate of membership is property, it does not fall within the definition given, nor do we know of any definition of property within which it would fall.

It may be said that a certificate of membership has a large value, and hence ought to be regarded as property. It is true that the board requires a person who becomes a member to pay an initiation fee of $5000, and the evidence shows that a certificate of membership is regarded in the market as worth $4000; but this does not change the character of the right. A church organized under our statute may own property, for the uses and privileges of its members, worth as much as the property possessed by the board of trade, and the right of a member to attend the meetings of the church and occupy a pew may be regarded as a high and valuable right, and yet the right of membership has never been regarded as property which may be subjected to the payment of the debts of a member. The same may also be said in regard to the membership in a masonic lodge, or a social club, and various other organizations of a similar character. There may be, and doubtless are, many privileges which a man may possess that are valuable to him, which do not fall within the definition of property, and which may be enjoyed, but can not be subjected to the payment of debts. A liquor dealer may be licensed to sell liquors at a certain place, for a certain time, for which privilege he is required to pay $1000 per annum. That privilege is worth to him much more than he is required to pay; but is that privilege property which may be sold on execution, or reached by a creditor's bill, for the payment of debts? We have never so understood the law. A peddler or an auctioneer may be licensed to carry on his vocation within a certain district, for which he may pay a stipulated sum of money. The profits arising from the privilege of exercising the right may be much larger than can be earned by a person exercising the right to transact business on the floor of the board of trade, and yet we have never understood that such a privilege was liable to be seized and sold in satisfaction of debts. The attorney and the physician are licensed to practice their professions. It costs money to obtain such a privilege. It may be, and is, a valuable right, and yet such a right can not be taken by a creditor's bill and sold in satisfaction of a debt. The same may be said in regard to various other privileges which may be, and often are, conferred upon persons in the different pursuits of life.

A certificate of membership in the Board of Trade of Chicago empowers the person who is admitted as a member to attend the meetings of the board, and deal in the various products of the country. This right to appear at a certain place and transact certain business, in our judgment is not property, but it is a mere privilege conferred upon the member, which can not be reached and sold by the process of courts. It is a right which may be regarded as valuable, but which can not be divested or destroyed, except by the board itself, for a failure of the member to conform to the rules and regulations of the association. This view is in harmony with the rule announced by the Supreme Court of the State of Pennsylvania, where a similar question arose. Thompson v. Adams, 93 Pa. St. 55; Pancoast v. Gowen, Id. 66.

We have been referred to some cases which seem to hold a different view, but without entering upon a review of the cases cited we do not think they establish the correct rule, and we are not inclined to follow them.

The judgment of the Appellate Court will be reversed, and the cause remanded.

Judgment reversed.

Subsequently, on an application for a rehearing, the following additional opinion was filed:

Mr. JUSTICE CRAIG:

A petition for a rehearing has been filed in this case, in support of which we have been favored with an elaborate argument, in which it is urged that the decision rendered by this court is not in harmony with the current of authority on the question involved. We have given the argument of the petitioner a careful consideration, but we are unable to arrive at a different conclusion from that reached on the original argument of the case.

In the petition for a rehearing it is said: “Appellee does not claim that Barclay's membership is property that he could levy on by...