898. of the sale were insufficient to pay the debt. | just as, in the case of a state, the ConstituEq. Rule 92. The appellants contend that the owners of the equity of redemption in all parts of the mortgage land must be joined, and that no deficiency judgment should be entered until all the mortgaged premises have been sold. In aid of their contention they argue that the territory of Hawaii is liable to suit like a municipal corporation, irrespective of the permission given by its statutes, which does not extend to this case. They liken the territory to the District of Columbia* (Metropolitan R. Co. v. District of Columbia, 132 U. S. 1, 33 L. ed. 231, 10 Sup. Ct. Rep. 19), and point out that it has been a party to suits that have been before this court (Damson v. Hawaii, 194 U. S. 154, 48 L. ed. 916, 24 Sup. Ct. Rep. 617; Carter v. Hawaii, 200 U. S. 255, 50 L. ed. 470, 26 Sup. Ct. Rep. 248). tion does, and the power that can alter the Constitution might. But the rights that exist are not created by Congress or the Constitution, except to the extent of certain limitations of power. The District of Columbia is different, because there the body of private rights is created and controlled by Congress, and not by a legislature of the District. But for the territory of Hawaii it is enough to refer to the organic act. Act of April 30, 1900, chap. 339, §§ 6, 55. 31 Stat. at L. 141, 142, 150. Coffield v. Territory, 13 Haw. 478. See, further, Territory v. Doty, 1 Pinney (Wis.) 396, 405; Langford v. King, 1 Mont. 33; Fisk v. Cuthbert, 2 Mont. 593, 598. However it might be in a different case, when the inability to join all parties and to sell all the land is due to a convey. ance by the mortgagor directly or indirectly to the territory, the court is not thereby deprived of ability to proceed. C. Decree affirmed. Mr. Justice Harlan concurs in the result. V. WILLIAM O. SMITH, Trustee; The Pacific The territory, of course, could waive its exemption (Smith v. Reeves, 178 U. S. 436, 44 L. ed. 1140, 20 Sup. Ct. Rep. 919), and it took no objection to the proceedings in the cases cited if it could have done so. See act of April 30, 1900, chap. 339, § 96. 31 Stat. at L. 141, 160. But in the case at bar it did object, and the question raised is whether the plaintiffs were bound to yield. Some doubts have been expressed as to the source of the immunity of a sovereign power from suit without its own permission, but the answer has been public property since before the days of Hobbes. Leviathan, chap. 26, 2. A sovereign is exempt from suit, not because of any formal conception or obsolete theory, but on the logical and practical ground that there can be no legal right as against the authority that makes the law on which the right depends. "Car on peut bien recevoir loy d'autruy, mais il est impossible par nature de se donner loy." Bodin, Republique, Argued March 21, 1907. Decided April 8, 1, chap. 8, ed. 1629, p. 132; Sir John Eliot, De Jure Maiestatis, chap. 3. Nemo suo statuto ligatur necessitative. Baldus, De Leg. et Const. Digna Vox, 2. ed. 1496, fol. 516, ed. 1539, fol. 61. As the ground is thus logical and practical, the doctrine is not confined to powers that are sovereign in the full sense of juridical theory, but naturally is extended to those that, in actual administration, originate and change at their will the law of contract and property, from which persons within the jurisdiction derive their rights. A suit presupposes that the defendants are subject to the law invoked. Of course it cannot be maintained unless they are so. But that is not the case with a territory of the United States, because the territory itself is the fountain from which rights ordinarily flow. It is true that Congress might intervene, A foreclosure sale of mortgaged property may be set aside before confirmation upon the single ground of inadequacy of price if such price is grossly disproportionate to the value of the property. [No. 216.] 1907. A Territory of Hawaii to review a judg ment which affirmed an order of the Third Judge of the First Circuit, in that terri PPEAL from the Supreme Court of the tory, refusing, because of the inadequacy of the price, to confirm a foreclosure sale of mortgaged property. Affirmed. See same case below, 17 Haw. 96. Statement by Mr. Justice Brewer: This is an appeal from a judgment of the supreme court of the territory of Hawaii (17 Haw. 96), affirming an order of the third judge of the first circuit court in the territory of Hawaii, which refused to confirm a sale of property made by a commissioner under order of court in a foreclosure suit brought by William O. Smith, as trustee, against the Pacific Heights Electric *Ed. Note. For cases in point, see vol. 35, Cent, Dig. Mortgages, § 1540. 286 *289 Railway Company, Limited, a Hawaiian corporation, and directed that the property be again offered for sale. The suit was brought to foreclose a trust deed of $50,000 executed by the railway company to Smith, as trustee, on April 1, 1902, and purporting to convey an electric railway 22 miles in length and running up to Pacific Heights, with its equipment of every kind, and also all land and other property conveyed to it by deed from one Charles S. Desky, dated January 25, 1902. The sale was made on February 4, 1905, for the sum of $1,100. It was in bulk of the entire property covered by the mortgage, except a cable and condenser, which were of comparatively little value, and which, for reasons not at all affecting the merits of this controversy, were not sold with the balance of the property. The commissioner who made the sale reported that the amount realized was disproportionate to the value of the property sold, and recommended that it should not be confirmed, but that such further order should be made as to the court should seem meet in the premises. On the hearing of a motion to confirm the sale, and objections thereto, the trial court found that the evidence was overwhelming that the actual value of the property was at least seven times the amount at which the erty was struck off, that being the highest and best bid therefor. prop of the question; on the one, that a court of equity owes a duty to the creditors seeking its assistance in subjecting property to the payment of debts, to see that the property brings something like its true value in order that, to the extent of that value, the debts secured upon the property may be paid; that it owes them something more than to merely take care that the forms of law are complied with, and that the purchaser is guilty of no fraudulent act; on the other, that it is the right of one bidding in good faith at an open and public sale to have the property for which he bids struck off to him if he be the highest and best bidder; that if he be free from wrong he should not be deprived of the benefit of his bid simply because others do not bid, or because parties interested have done nothing to secure the attendance of those who would likely give for the property something nearer its value; that if the creditors make no effort, and are willing to take the chances of a general attendance, they have no right to complain on the ground that the property did not bring what it should have brought. In England the old rule was that in chancery sales, until confirmation of the master's report, the bidding would be opened upon a mere offer to advance the price 10 per cent; but this rule has been rejected, and now both in England and this country a sale will not be set aside for mere inadequacy of price un Messrs. David L. Withington and William less that inadequacy be so gross as to shock R. Castle for appellants. Messrs. Francis M. Hatch, William O. Smith, A. Lewis, Jr., and L. J. Warren for appellees. the conscience, or unless there be additional circumstances against its fairness. But if there be great inadequacy, slight circumstances of unfairness in the conduct of the party benefited by the sale will be sufficient Mr. Justice Brewer delivered the opinion to justify setting it aside. Graffam v. Burof the court: The question presented is whether a court of equity may, prior to any order of confirmation, set aside a foreclosure sale of mortgaged property upon the single ground of inadequacy in price; and further, whether, if it has that power, the inadequacy here shown is so gross as to justify such action. It does not appear that there was any fraudulent conduct on the part of the purchaser or any combination to restrict bidding. The sale was duly advertised. It was, so far as disclosed, open and public, and the bid reported was the highest. Nothing in time or place or lack of attendance of buyers is shown. Many of the considerations, therefore, which have influenced courts of equity to set aside judicial sales are not to be found in the present case. Indeed, the only substantial objection is that the amount of the bid is largely below the value of the proparty. Something may be said on each side gess, 117 U. S. 180, 191, 192, 29 L. ed. 839, 842, 843, 6 Sup. Ct. Rep. 686. It is difficult to formulate any rule more definite than this, and each case must stand upon its own peculiar facts. It was said by Mr. Chief Justice Waite, in Mayhew v. West Virginia Oil & Oil Land Co. 24 Fed. 205, 215, "that in chancery a bidder at a sale by a master, under a decree of court, is not considered a purchaser until the report of sale is confirmed." See also Magann v. Segal, 34 C. C. A. 323, 92 Fed. 252, 255; Jennings v. Dunphy, 174 Ill. 86, 50 N. E. 1045; Vanbussum v. Maloney, 2 Met. (Ky.) 550, 552; Sumner v. Sessoms, 94 N. C. 371; Branch v. Griffin, 99 N. C. 173, 5 S. E. 393, 398. The power of a court of equity in reference to a resale was affirmed by this court in Pewabic Min. Co. v. Mason, 145 U. S. 349, 36 L. ed. 732, 12 Sup. Ct. Rep. 887, in which case we said *291 (p. 356, L. ed. p. 734, Sup. Ct. Rep. p. 888): "The question in this case is whether the master's sale shall stand. It may be stated generally that there is a measure of discretion in a court of equity, both as to the manner and the conditions of such a sale, as well as to ordering or refusing a resale. The chancellor will always make such provisions for notice and other conditions as will in his judgment best protect the rights of all interested, and make the sale most profitable to all; and after a sale has once been made, he will, certainly before confirmation, see that no wrong has been accomplished in and by the manner in which it was conducted." See also Schroeder v. Young, 161 U. S. 334, 40 L. ed. 721, 16 Sup. Ct. Rep. 512. Now, in the case before us, the commissioner who made the sale reported against its confirmation. It was not confirmed, but set aside by the trial court, which found that the evidence was overwhelming that the actual value of the property was at least seven times the amount of the bid. While the testimony is not preserved, it is stated by the supreme court of the territory that it was claimed that only four years before the sale the property cost $78,000, exclusive of the right of way. It was, in fact, bonded less than three years before for $50,000. Speaking in general terms, it consisted of an electric railway 21⁄2 miles in length, two freight cars, two passenger cars, and other appliances for running the railway. All this was sold for $1,100. The action of the trial court in setting aside the sale was approved by the supreme court of the territory. Under the circumstances, we think the order of the supreme court should be sustained. While we are disinclined to any action which will impair confidence in the stability of judicial sales, yet, with the concurrence of judicial opinion adverse to this sale, considering the amount of property sold, the meager sum bid by the purchaser, the express finding that the overwhelming testimony was to the effect that the property was worth at least seven times more than the sum bid, and also recognizing that the courts which have passed upon this question are much more familiar with the condition of things in Hawaii, and therefore more competent to appreciate the significance of the transactions attending the sale, we have come to the conclusion that it would not be right to reverse the ruling below and confirm the sale. The judgment of the Supreme Court of the Territory of Hawaii is affirmed. 27 8. C.-34. NEW YORK COTTON EXCHANGE. in a suit brought by the New York Cotton amount. the New York Cotton Exchange to enjoin 2. The effect of testimony in a suit by the defendant from receiving and using quotations of sales on such exchange, that the value of the right to control these quotations is much greater than $2,000, is not impaired by evidence that the value of quotations of sales varies with the volume of business. Courts-enjoining proceedings in state court. York Cotton Exchange, the receipt and use Submitted March 4, 1907. Decided April 8, A PPEAL from the Circuit Court of the United States for the Western District of Tennessee to review a decree enjoining defendant from receiving and using quotations of sales made upon the New York Cotton Exchange. Affirmed. See same case below, on motion for preliminary injunction, 144 Fed. 511. Statement by Mr. Justice McKenna: This is a bill in equity brought by the New York Cotton Exchange, a New York corporation, against appellant, a citizen of Tennessee, in the circuit court of the United States for the western district of Tennessee, to enjoin him from receiving and using the quotations of sales made upon the exchange. The case is here on questions of jurisdiction, and only a synopsis of the principal facts alleged is necessary. *324 The exchange is a private corporation under the laws of New York, with 450 members, and owns in the city of New York a building for the use of its members, and conducts therein, on every business day, cotton sales for present and future delivery, the transfers aggregating many million bales of cotton annually. The purchases and sales for future delivery are permitted to be made and are made only during market hours and by open viva voce bidding, and the knowledge of the prices thus made has become a species of property of such value that telegraph companies pay large sums of money to the exchange for the privilege of receiving instantaneously the quotations, and distributing the same to customers and many persons in the United States who are engaged in the cotton commission business. Such persons are willing to pay and du pay the telegraph companies therefor, and the exchange realizes from the distribution of the quotations through the telegraph companies large sums of money annually. The quotations are such peculiar kind of property that their value depends upon the power of the exchange to confine the transmission and distribution thereof to such telegraph companies and their distributing agencies as will contract therefor with the exchange, and that, if any person or corporation is permitted to promptly acquire the quotations surreptitiously or by theft, or without paying the exchange therefor, such person or corporation can promptly give the same to numerous other persons, and the telegraph companies contracting with the exchange would thus be put at a disadvantage in competition with such persons so obtaining the quotations without pay for them, and would thereby be deterred from continuing to pay the exchange the prices provided in the contracts with the telegraph companies. The manner of collecting and distributing the quotations is detailed, and yearly the cost to the exchange, it is alleged, is $4,500. Prior to 1893 the exchange permitted the telegraph companies to gather the quotations through their own employees upon the floor of the exchange building, and to distribute them without any effective restrictions upon the persons entitled thereto, with the result that many persons used the same in conducting so-called "bucket shops," by reason thereof the bucket-shop evil assumed such large proportions and became so serious as to materially affect the legitimate transactions upon the floor of the exchange, and its members were deprived of many customers. The exchange therefore found it necessary to terminate such right or license of the telegraph companies, and to that end made contracts with them. The contracts are attached to the bill. It is enough to say of them that under them the companies receive the quotations under the condition not to furnish them to any persons, firms, or corporations who, or which, may be directly or indirectly engaged in the promotion or maintenance of bucket shops or other places where such continuous quotations are used as a basis for bets or other illegal contracts based upon fluctuations of the prices of cotton dealt in on the exchange. Nor shall the companies directly or indirectly furnish the quotations to any person, firm, or corporation, whether members of the exchange or not, until such person, firm, or corporation shall have submitted an application in writing to the exchange in such form as it shall provide, and until it has approved of the application. The exchange has power to revoke its approval. In such event the companies shall cease to furnish the quotations, and, if they have installed tickers or wires in the office or place of business of such person, firm, or corporation, they shall immediately remove the same. This, however, they are not required to do, "or to discontinue service furnished by any other means, which are under restraint by injunctions of the courts during the pendency of the injunction." In case of an application once approved and afterwards disapproved by the exchange and a suit be commenced against the companies on account of the discontinuance of the quo. tations, the exchange shall defend such suits at its expense and pay all fines, penalties, etc., to which the companies may be subject. In cases where an application has not been approved by the exchange, suits against the companies for refusal to furnish the quota. tions shall be defended at the expense of the companies, which shall use diligent efforts to secure the removal of injunctions. the suit shall be brought against the exchange it shall defend at its own cost. For the purpose of protecting the companies against the use of quotations originating on the exchange by parties not entitled to them the companies may prosecute suits in their own name or that of the exchange to prevent or stop such competitive use. If The Western Union Telegraph Company has to pay the exchange for the quotations $13,584 per annum in equal instalments of $1,132 at the close of each month. form of the application is attached to the contract. The It is alleged that all persons receiving the quotations have made applications in the form set out, except in a few instances, where persons who were receiving quotations from the companies prior to the execution of the contracts have, since the execution thereof, secured temporary injunctions (the ex *326 court sustained the jurisdiction. The appellant then filed an answer, in which he alleged that the contracts with the telegraph companies were illegal and void, and that the exchange had no right to require the making of applications to it, and no right to require the companies to refuse the quotations to persons applying therefor, because such persons refused to make application to the exchange. He admitted that he had not made an application to the exchange, but had been desirous and even anxious to pay for the use of the quotations and conform to any reasonable rules or regulations, by whomsoever prescribed. He alleged that those stated in the bill were not reasonable, but unjust, oppressive, and illegal. And further, that he commenced business in Memphis as a broker, dealing in cotton, stocks, grain, and provisions, about the month of March, 1898, and made applica tion to the Western Union Telegraph Company, under its designation of the Gold & Stock Telegraph Company, for its quotations by "ticker." The application was accepted, he agreeing to pay therefor the sum of $25 per month. He has continued to re The defendant, Clarence P. Hunt (appellant), has not made application to either of the companies or the exchange, nor has the exchange consented to his receipt of the quotations. On July 14, 1903, he was receiving from the Western Union Telegraph Company the quotations, and the company on said day notified him of the contract between it and the exchange, and that under said contract the company would be required to and would cease furnishing the quotations. Hunt declined to make an application, but in lieu thereof, on July 31, 1903, filed in the chancery court of Shelby county, Tennessee, a petition against the company to enjoin it from ceasing to furnish him said quotations. An ex parte injunction was issued. The company then filed its answer, and, the cause coming on for final hearing on bill and answer, decree was entered for it. The supreme court of the state reversed the decree without deciding the merits, for the rea-ceive the quotations until the present time, son that the chancery court should not have decided the cause on bill and answer, but should have awaited the taking of evidence. The cause is now pending and the injunction is still in force, and that by reason thereof only the company is furnishing Hunt the quotations. And it is alleged "that such authorized receipt and use of said quotations by said defendant is calculated to and in time will, if not entirely stopped, seriously impair the value to your orator of its quotations, and that if even one person within the jurisdiction of this court be allowed to secure such quotations without restrictions as to the use thereof which your orator imposes as aforesaid, such person can furnish them to all the bucket shops and other persons within the United States desiring them, and thus entirely defeat the efforts of your orator to prevent their use in bucket shops as a basis of their illegal bets, and materially impair the right of your orator to derive a revenue from the distribution of said quotations." It is further alleged that there is no adequate remedy at law, and that "the amount involved and matters in dispute, exclusive of interest and costs, is much more than the sum of $2,000." An injunction was prayed. A preliminary injunction was issued. 144 Fed. 511. *The appellant filed a plea to the jurisdiction, traversing the allegations of the bill which averred the jurisdictional amount. ▲ replication to the plea was filed. The and has built up and has now a considerable business, at great expense and labor, and the value and profits of the business depend largely upon the receipt and use of the quotations "by and through the 'ticker,' under and in accordance with the contract." The quotations are received through the "ticker" automatically, a specimen of which is attached to the answer,—and the letters and figures are at once put upon a blackboard in his office for reference and use, and are used immediately for the transaction of business. They indicate New York as the place from which the quotations are sent, the time of sending, the month the cotton has been sold for. He has transacted no business except as a broker, as stated, and is duly licensed under the laws of Tennessee. Every transaction made by him as evidenced by report made to his customers upon a form, a copy of which is attached to the answer. The report evidences the consummation of the contract, and has upon it the following: "All orders for the purchase or sale of any article are received and executed with the distinct understanding that actual delivery is contemplated where order is executed, and that the party giving the order so understands and agrees." Shortly after July 14, 1903, he was informed that the exchange had required the telegraph company to cancel its contract with him, and to take the ticker out of his office, and to cease to furnish to him the quotations; thereupon he and other persons *328 |