Jaffe v. Cruttenden

• Decision Date: 22 May 1952
• Docket Number: No. 32016,32016
• Citation: 107 N.E.2d 715,412 Ill. 606
• Parties: , Blue Sky L. Rep. P 70,184 JAFFE v. CRUTTENDEN.
• Court: Illinois Supreme Court

Page 715

107 N.E.2d 715

412 Ill. 606, Blue Sky L. Rep. P 70,184

JAFFE v. CRUTTENDEN.

No. 32016.

Supreme Court of Illinois.

May 22, 1952.

Rehearing Denied Sept. 15, 1952.

Alfred M. Loeser, of Chicago, for appellant.

Henehan & McInerney, of Chicago, (Thomas P. Henehan, Chicago, of counsel), for appellee.

SCHAEFER, Justice.

The plaintiff, Jacob H. Jaffe, brought an action in the circuit court of Cook County against Walter W. Cruttenden and eight others, copartners doing business as Cruttenden & Co., to recover $3000, the purchase price of 200 shares of common stock of American Bantam Car Company, which he bought from the firm on January 15, 1946, together with his attorney's fees. From an adverse judgment he appeals directly, the constitutionality of a statute being involved.

The gist of plaintiff's complaint is that the stock was a Class 'D' security under the Illinois Securities Law, (Ill.Rev.Stat.1951, chap. 121 1/2, par. 96 et seq.,) and that the requirements of the act relating to the sale of such securities were not complied with. Plaintiff alleged that, on March 12, 1946, he tendered to Cruttenden & Co. the 200 shares and demanded the return of the purchase price, and that his demand was refused. He also alleged that he purchased the shares from defendants in reliance upon false representations made by them. Cruttenden, the only defendant served with process, answered, alleging that the sale was made in accordance with paragraph 7 of section 5 of the statute, and that the stock was therefore a Class 'B' security, the sale of which was exempted from the requirements of the act. Plaintiff moved to strike the answer upon the ground that paragraph 7 of section 5 was unconstitutional in respects specifically enumerated. Upon denial of this motion, plaintiff replied to the answer, making the same allegations of unconstitutionality. Evidence was heard by the court without a jury, the issues were found for defendant, and judgment was entered for defendant and against plaintiff.

Plaintiff's charge of actual fraud, decided adversely to him in the trial court, is here abandoned. The issues on this appeal are therefore: (1) the constitutionality of paragraph 7 of section 5 of the Illinois Securities Law, (Ill.Rev.Stat.1951, chap. 121 1/2, par. 100,) and (2) the adequacy of the proof of compliance with the requirements of that paragraph.

Since its original enactment in 1919, section 5 of the Illinois Securities Law has exempted from the operation of the act sales of securities taking place under described circumstances. Securities so sold are designated as Class 'B' securities. Unlike the other classes of securities fixed by the act, this class is determined by the circumstances of the sale, rather than by the inherent characteristics of the security sold. People v. Wilson, 375 Ill. 506, 31 N.E.2d 959. Paragraph 7 of section 5, which was added by amendment in 1945, includes in this category of exempted sales the resale by a broker of a security acquired in the ordinary course of business. Both the acquisition price and the resale price are required to be 'reasonably related' to the then current market prices. Information as to the issuer of the security is required to have been published in 'a recognized manual of securities', such information to include a balance sheet as of a date not more than fifteen months prior to the resale, and an income account for a period of not less than three years next prior to the date of the balance sheet. Alternatively, the information required may be furnished in writing to the Secretary of State, 'in form and extent acceptable' to him.

Plaintiff's attack upon the paragraph's constitutionality is directed against three particular phrases: (1) 'reasonably related to the current market price', describing the prices at which the security must be acquired and sold by the dealer to qualify for the exemption; (2) 'recognized manual of securities', describing the publication in which information about the corporation issuing the security is set forth, and (3) 'in form and extent acceptable to the Secretary of State,' describing information to be furnished the Secretary of State as an alternative to (2). Plaintiff contends that phrases (1) and (2) are so vague that they violate the due-process clauses of the Federal and Illinois constitutions; that the alleged absence of a standard renders phrase (3) an invalid delegation of legislative power, and that phrase (2) also constitutes a special privilege or immunity, in violation of section 22 of article IV of the Illinois constitution, S.H.A.

The asserted vagueness will be considered first. It is well settled that the duty imposed by a statute must be prescribed in terms definite enough to serve as a guide to those who must comply with it. United States v. Petrillo, 332 U.S. 1, 67 S.Ct. 1538, 91 L.Ed. 1877; Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 99 A.L.R. 607. To establish conclusively the invalidity of the present statute, plaintiff relies upon Boshuizen v. Thompson & Taylor Co., 360 Ill. 160, 195 N.E. 625, and Vallat v. Radium Dial Co., 360 Ill. 407, 196 N.E. 485, 99 A.L.R. 607. In those cases this court held invalid for vagueness section 1 of the Occupational Diseases Act, Ill.Rev.Stat.1935, c. 48 § 73, which required employers to adopt and provide 'reasonable and approved devices, means or methods for the prevention of such industrial or occupational diseases'. Plaintiff urges that this condemnation for uncertainty of the word 'reasonable' when used to describe devices for the protection of health compels a similar result in this case. But the circumstances in which the word was there used differ widely from those here involved. There, as the court pointed out, the use of the phrase 'reasonable and approved devices, means or methods for the prevention' of occupational diseases left the statutory requirement at large, in a field which encompassed such diverse factors as the structure of buildings, the availability and effectiveness of mechanical devices, and the techniques of preventive medicine. Here, the range of the statute is tightly circumscribed. The word 'reasonable' concerns the relation between the acquisition price and the sale price, on the one hand, and the market price on the other.

Reasonableness is not, under all circumstances, a prohibited statutory standard. Compare: United States v. Shreveport Grain & Elevator Co., 287 U.S. 77, 81, 82, 53 S.Ct. 42, 77 L.Ed. 175, 'reasonable variations' in weight or measure; Nash v. United States, 229 U.S. 373, 376-378, 33 S.Ct. 780, 57 L.Ed. 1232, unreasonable or undue restraints of trade; Waters-Pierce Oil Co. v. Texas (No. 1), 212 U.S. 86, 29 S.Ct. 220, 53 L.Ed. 417, contracts 'reasonably calculated' or which 'tend' to fix prices; Weeds, Inc., v. United States, 255 U.S. 109, 41 S.Ct. 306, 65 L.Ed. 537, exacting 'excessive prices for necessaries'. Nor do the cases relied upon by plaintiff preclude the legislative use of the word 'reasonable' in all fields other than those in which its use was sanctioned at common law. Indeed, such a holding would be obviously incorrect. See: State v. Langley, 53 Wyo. 332, 84 P.2d 767; People v. Curtiss, 116 Cal.App.Supp. 771, 781, 300 P. 801, 805, holding that 'reasonableness' as 'the standard of an act which can be determined objectively from the circumstances, is a common, widely-used and constitutionally valid standard in law.'

The crucial consideration is whether the language used 'conveys sufficiently definite warning as to the proscribed conduct when measured by common understanding and practices. The Constitution requires no more.' United States v. Petrillo, 332 U.S. 1, 8, 67 S.Ct. 1538, 1542, 91 L.Ed. 1877. No reason appears why dealers in securities, of ordinary intelligence, would be unable to know when their purchases or sales were not 'reasonably related to the current market price.' That marginal cases may present difficulties does not mean that the language is too ambiguous to define the duties and conditions involved. United States v. Petrillo, 332 U.S. 1, 7, 67 S.Ct. 1538, 91 L.Ed. 1877. The language of Mr. Justice Holmes in United States v. Wurzbach, 280 U.S. 396, 399, 50 S.Ct. 167, 169, 74 L.Ed. 508, is particularly apt: 'Wherever the law draws a line there will be cases very near each other on opposite sides. The precise course of the line may be uncertain, but no one can come near it without knowing that he does so, if he thinks, and if he does so, it is familiar to the criminal law to make him take the risk.' And in Nash v. United States, 229 U.S. 373, 33 S.Ct. 780, 781, 57 L.Ed. 1232, in upholding the Sherman Anti-Trust Act, 15 U.S.C.A. §§ 1-7, 15 note, with its 'rule of reason' standard, the court stated: 'The law is full of instances where a man's fate depends on his estimating rightly, that is, as the jury subsequently estimates it, some matter of degree.'

The foregoing observations apply with like force to the question of the validity of the phrase 'recognized manual of securities', against the attack of uncertainty. The legislature, in providing for the exemption in paragraph 7, added the requirement that the securities sold be those for which information as to the issuer is published in a recognized manual, the theory being that the publicizing of the information decreased the likelihood of fraud. It would have been improper, and perhaps invalid under section 22 of the article IV of our constitution, to have specified three or four such manuals. Moreover, this would have defeated the obvious legislative purpose to include all recognized manuals.

The meaning of the word 'recognized,'-here, 'acknowledged with approval,'-is sufficiently clear. Plaintiff, however, vigorously asserts that it is impossible to know by...