that, as ordinarily conducted, the business of receiving, storing, compressing and delivering cotton is privati [publici?] juris, which those engaged in it have not the right to fix the rates and conditions upon which it will be conducted. But the argument seems to be, that, in view of the necessities of trade, its magnitude and effect upon the interest of the people throughout the state, as well as of those engaged in the business of appellant, it has become of like public interest as other occupations and trades which the law pronounces and holds to be juris publici. The conclusion sought to be maintained rests upon the hypothesis that whenever it is made to appear that any particular business is of so general public interest as that which the law holds to be juris publici, the courts have the power to so declare and hold it. The case of Munn v. Illinois, 4 Otto, 125, seems to be the authority mainly relied on to support this position. We cannot regard this case as authority for such a doctrine. It was brought to enforce the statute law of the state. The conclusion to be drawn from it is, as we think, that the legislature may declare a particular business publici juris, if the facts and circumstances under which it is conducted justify and the good of society requires it; but not that the court may so treat it in advance of legislative recognition or declaration. Whether this may be done, even by the legislature, without infringing upon the constitution, need not now be considered. Neither is it necessary for us at present to determine whether the submission of property and service to public use (as there is high authority for holding) is solely dependent upon the fact that those engaged in such business enjoy some franchise, privilege or immunity from the state, or did so in the early days of the common law when this character was impressed upon their property or service. (Dissenting opinion of Fields, J., in Munn v. Illinois, supra, and authorities cited.)

But if it is admitted that appellee's property and services were affected with a public interest, and the amount demanded of, and paid by appellant, was greater than what was reasonable, as it appears from the petition that the payments were made with full knowledge of all the facts and without fraud or deception, unless made under duress, the amount thus paid cannot be recovered back, although so much as exceeds the reasonable value of the services rendered was paid without consideration. (34 Ala., 405; 7 Cush., 125; 59 N. Y., 603; 50 Ga., 304.)

A mere protest against a charge does not entitle the party who voluntarily and without duress or compulsion pays it, to sue for and recover it back. (5 Cush., 115; 29 Md., 415; 25 Ind., 261; 46 Cal., 589; 5 Kan., 412.)

Second. It remains to inquire whether the money sued for was paid without consideration, involuntarily and under duress. There is no pretense of duress except by reason of the alleged combination of appellee and its confederates, to charge a larger amount than the services rendered were reasonably worth; and for the delivery of cotton which appellant says was not in fact actually delivered, and the agreement between appellee and its confederates that they would not do business with any parties who should fail or refuse to pay any of their charges, or who should resort to the courts to controvert or dispute them. As the business in which appellee is engaged is open to all who wished to engage in it, and was not, as we have seen, affected with a public interest, any one engaging in it may prescribe the terms upon which he will transact it. All parties employing his services, knowing his terms, would be bound by them. If it is lawful for a single individual engaged in other business to prescribe the terms upon which he will conduct it, we do not see how it can become unlawful by others in the same employment agreeing with him that they will also transact their business upon the same terms and conditions. (Kirkman v. Walker, 6 Term, 14.)

If appellee may lawfully decline doing business for or with those who refuse to comply with the terms which it prescribes, the fact that a failure to conform to these terms would result in its declining in future to transact business with the party thus failing, cannot be held to be duress. On the other hand, if the terms and conditions are illegal and such as a party has no right to prescribe for himself or in combination with all parties engaged in like business, thereby securing a virtual monopoly, we can see no better reason for saying in this than in the other case that contracts entered into and business conducted for a series of years with one of the parties to such agreement with knowledge of it, can be held to have been under duress. If the combination is illegal and the terms prescribed by it are such as the parties have no right to demand, certainly the courts are not impotent to restrain the parties to such illegal combinations and give redress to those improperly affected by it. To entitle a party voluntarily paying money to recover it back on the ground of duress, he must, at the time of such payment, be under the necessity of either then making the payment, or of resorting to the courts to get possession of property wrongfully detained, or to recover his liberty, or at least show that there is an apparent necessity for resorting to the courts for one or the other of these purposes.

The petition shows that the transactions between the parties to the suit do not come within either of these categories. Appellant

certainly had ample time and opportunity to have had his day in court, before the business between him and appellee was closed by the last voluntary payment by him. Not having complained until the late date at which this suit was brought, he cannot now be heard to complain. (5 Otto, 112–13; 4 Gill (Md.), 425; 1 Ohio

St., 268; 34 Md., 436; 115 Mass., 367.

The judgment is affirmed."

THE INTER-OCEAN PUBLISHING CO. v. THE
ASSOCIATED PRESS.

184 Ill. 438. 1900.1

-Aine
Press.

THE Inter-Ocean Publishing Company, a corporation organized under the laws of the State of Illinois, is engaged in publishing two newspapers in the city of Chicago, known as The Daily InterOcean and The Weekly Inter-Ocean, which have a wide circulation in the States and Territories of the United States. The Associated Press is a corporation organized under the laws of the State of Illinois in 1892. The object of its creation was, "to buy, gather and accumulate information and news; to vend, supply, distribute and publish the same; to purchase, erect, lease, operate and sell telegraph and telephone lines and other means of transmitting news; to publish periodicals; to make and deal in periodicals and other goods, wares and merchandise." It has about eighteen by-ass laws with about seventy-five subdivisions thereof. The stockholders of the Associated Press are the proprietors of newspapers, and the only business of the corporation is that enunciated in its charter, and is mainly buying, gathering and accumulating news and furnishing the same to persons and corporations who have entered into contract therefor. It may furnish news to persons and corporations other than those who are stockholders, and the term members," used in its by-laws, applies to proprietors of newspapers, other than its stockholders, who have entered into contracts with it for procuring news. It does not appear that it has availed itself of any of the powers conferred by its charter other than that of gathering news and distributing the same to its members. Under the by-laws of appellee the Inter-Ocean Publishing Company became a stockholder.

The by-laws of the appellee provide, among other things, as fol

3 Accord, Delaware, L. & W. R. R. v. Central S. Y. & T. Co. (1889), 45 N. J. Eq. 50; National Un. Fire Ins. Co. v. Dickinson (1917), 128 Ark. 367. 377.

1 The statement of facts is abbreviated, arguments of counsel are not reprinted, and parts of the opinion of PHILLIPS, J., are omitted.- ED.

2.

3.

lows: "No member shall furnish, or permit any one 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 person, firm or corporation engaged in the business of collecting or transmitting news, except with the written consent of the board of directors." The by-laws also provide that the board of directors shall have the power to suspend a member for furnishing, or purchasing news contrary to the rule just quoted, and the contract between the appellant and the appellee expressly incorporated these rules.

The appellant bought news from the Sun Printing and Publishing Association of New York, which had been declared antagonistic to the appellee. Certain other newspapers complained to appellee of appellant's conduct in this regard, and appellee notified appellant that a meeting of appellee's board of directors would be held at a time and place mentioned to take action on these complaints. Before the time set for the hearing appellant filed its bill for an injunction against the appellee from suspending or expelling it from its membership, and from refusing to furnish it news according to the terms of its contract. A decree was rendered 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.

Held:-
Ejuuction

MR. JUSTICE PHILLIPS delivered the opinion of the court.

The organization of such a method of gathering information and news from so wide an extent of territory as is done by the appellee corporation, and the dissemination of that news, requires the expenditure of vast sums of money. It reaches out to the various parts of the United States, where its agents gather news which is wired to it, and through it such news is received by the various important newspapers of the country. Scarcely any newspaper could organize and conduct the means of gathering the information that is centered in an association of the character of the appellee because of the enormous expense, and no paper could be regarded as a newspaper of the day unless it had access to and published the reports from such an association as appellee. For news gathered from all parts of the country the various newspapers are almost solely dependent on such an association, and if they are prohibited from publishing it or its use 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 organization and establishment in business, sold its news reports to various newspapers who became members, and the

publication of that news became of vast importance to the public, so that public interest is attached to the dissemination of that news. The manner in which that corporation has used its franchise has charged its business with a public interest. It has devoted its property to a public use, and has, in effect, granted to the public such an interest in its use that it must submit to be controlled by the public for the common good, to the extent of the interest it has thus created in the public in its private property. The sole purpose for which news was gathered was that the same should be sold, and all newspaper publishers desiring to purchase such news for publication are entitled to purchase the same without discrimination against them.

...

It was held in New York and Chicago Grain and Stock Exchange v. Board of Trade, 127 Ill. 1532 (on p. 163): "Assuming these market quotations and reports are property and the private property of the board of trade, yet if they have been so used by the board, and by the telegraph company with the knowledge and consent of the board, as to become affected with a public interest, then they are subject to such public regulation by the legislature and the courts as is necessary to prevent injury to such public interest. . . . The doctrine, as applied to the matter of these market quotations, would forbid that a monopoly should be made of them by furnishing them to some and refusing them to others who are equally willing to pay for them and be governed by all reasonable rules and regulations, and would prevent the board of trade or the telegraph companies from unjustly discriminating in respect to the parties who will be allowed to receive them." This principle is sustained in Friedman v. Telegraph Co. 32 Hun, 4, and Smith v. Telegraph Co. 42 id. 454. The appellee corporation being engaged in a business upon which a public interest is engrafted, upon principles of justice it can make no distinction with respect to persons who wish to purchase information and news, for purposes of publication, which it was created to furnish.3

2 In this case the service to plaintiff was started and continued as a service of the telegraph company, the subscribers' contracts being stili with the telegraph company, though the information to be transmitted was furnished by the Board of Trade. See also in this connection the New York case of Tucker v. Western Un. Tel. Co. (1915), 95 Misc. 287, aff'd without opinion 156 N. Y. Supp. 1148.

3 But see Live Stock Commission Co. v. Live Stock Exchange (1892), 143 Ill. 210, in which the Court said in part:

"But we are not prepared to hold that the mere fact that the business of a particular market has become very large, gives to the court any power to declare such markets public and impressed with a public use, or to apply to them any rules of public policy peculiar to that class of markets."

"It is not claimed that the keeping or doing business in a market of this character is one of the employments which the common law declares to be

3,