Argument for Christie and Kinsey Companies. 198 U.S. 539; Am. Tel. Co. v. Conn. Tel. Co., 49 Connecticut, 352; Sullivan v. Post. Tel. Co., 123 Fed. Rep. 411; Wilson v. N. Y. Comm. Tel. Co., 3 N. Y. Supp. 633. Nor is it a violation of the Sherman Act, or illegal at common law to impose restrictions as to use of quotations. Whitwell v. Continental Tobacco Co., 125 Fed. Rep. 454; Mitchell v. Reynolds, 1 Poere Williams, 181; Elliman v. Carrington, L. R. 1901, 2 Ch. Div. 275; Fowle v. Park, 131 U. S. 88; Bement v. Nat. Harrow Co., 186 U. S. 70; United States v. E. C. Knight Co., 156 U. S. 1, 16; Northern Securities Co. v. United States, 193 U. S. 197, 338; Hopkins v. United States, 171 U. S. 578, 600; Anderson v. United States, 171 U. S. 604, 615; United States v. Joint Traffic Association, 171 U. S. 558; Alexander v. State, 86 Georgia, 246. The anti-bucket shop acts were in force when the Sherman Act was passed. They promote public welfare. They were passed in the exercise of the State's police power. Doubtless that power must yield, when necessary, to the paramount power of Congress to regulate commerce; but this court should not, in the absence of clear language, assume that Congress intended by this act to nullify these state statutes, if indeed it lawfully might do so. Sherlock v. Alling, 93 U. S. 99; Plumley v. Massachusetts, 155 U. S. 461; Patterson v. Kentucky, 97 U. S. 501; Nashville Ry. v. Alabama, 128 U. S. 96; Hennington v. Georgia, 163 U. S. 299. Is it not a more reasonable construction of this act that Congress did not intend to cover this subject or invade this field at all, and that States may still, under their police power, prevent the transmission of quotations into a State for use there in a bucket shop? Mr. James H. Harkless and Mr. W. H. Rossington, with whom Mr. Chester H. Krum, Mr. Charles S. Crysler, Mr. Clifford Histed, Mr. Charles Blood Smith and Mr. J. S. West were on the brief, for respondent in No. 244. Mr. Lloyd Charles Whitman and Mr. E. D. Crumpacker, with whom Mr. Jacob J. Kern, Mr. John A. Brown and 198 U. S. Argument for Christie and Kinsey Companies. Mr. Peter Crumpacker were on the brief, for the petitioner in No. 280. The quotations are not property and cannot be impressed with a right of property by the Board of Trade. Sayre v. Moore, 1 East. Rep. 361; Jefferys v. Boosey, 4 H. L. Cas. 815; Crowe v. Aiken, 2 Bissell, 214; Thompson v. Hubbard, 131 U. S. 151; Iolanthe Case, 15 Fed. Rep. 442; West. Pub. Co. v. Lawyers Coöp. Co., 64 Fed. Rep. 364; Stowe v. Thomas, Fed. Cas. No. 13,514, and cases cited by counsel for Board of Trade. The Board of Trade has no property right or interest in or to the knowledge of the quotations, as they arise from the transactions of its members on the exchange. Cases cited supra and Keene v. Wheatley, Fed. Cas. No. 7644. The right of property to mental or literary effort rests fundamentally upon the creative faculty which must have been exercised by the claimant or one through whom his title is derived. Nothing can be the object of property which has not a corporeal substance. Wheaton v. Peters, 8 Pet. 591; nor be the object of property which is not capable of sole and exclusive enjoyment. Millar v. Taylor, 4 Burr, 2361; 2 Kent's Com. 320; Webster; Bouvier, sub. "Property"; Schouler's Personal Property, 82; 1 Blackstone, 138; Jones v. Van Zandts, 4 McLean, 603. To be property it must be capable of distinguishable proprietary marks. Jefferys v. Boosey, 4 H. L. Cas. 869. The Board of Trade cannot alter the essential nature of the quotations. Its sole right of property is confined to the records themselves. It has no property interest in quotations made up of transactions on its floor when the transactions are not based upon. bona fide contracts of purchase and sale of the commodity dealt in. The cases in 127 Illinois and 103, 109 and 119 Fed. Rep., cited by counsel for the Board, are not determinative of this case. The transactions on which the quotations are based are so VOL. CXCVIII-16 Argument for Christie and Kinsey Companies. 198 U. S. tainted with illegality that the Board cannot have a property right in them. As to the illegality of transactions, where there is no intention of delivery of the commodity bought and sold, see Counselman v. Reichert, 103 Iowa, 430; First Nat. Bank v. Oskaloosa Co., 66 Iowa, 41. As to methods of the Board of Trade see Central Stock Exchange v. Board of Trade, 196 Illinois, 396; Higgins v. McCrea, 116 U. S. 671. The testimony shows that no deliveries are intended in ninety five per cent of the transactions. The members of the Board occupy the relation of bucket shops to their customers and the Board is a bucket shop to the non-members. As to substitution of trade see Clews v. Jamieson, 182 U. S. 461, 471. As to how transactions between members are to be determined as to the element of wager see Irwin v. Williar, 110 U. S. 499; Melchert v. Am. Union Tel. Co., 11 Fed. Rep. 193; Bernard v. Backhaus, 9 N. W. Rep. 585, 596; Dows v. Glaspel, 60 N. W. Rep. 60; Whitesides v. Hunt, 97 Indiana, 191; Edwards v. Hoeffinghoff, 38 Fed. Rep. 639; Embrey v. Jemison, 131 U. S. 336; Mohr v. Miseni, 49 N. W. Rep. 862; Pickering v. Chase, 79 Illinois, 328. The Board of Trade does not come into court with clean hands. It is violating the Illinois anti-bucket shop act of 1887. 1 Starr & Curtis Ann. Stat. 1304. That act was construed in Soby v. People, 134 Illinois, 68; Weare Commission Company v. People, 111 Ill. App. 116, affirmed 209 Illinois, 528. And see as to the protection of gambling transactions. Beard v. Milmine, 88 Fed. Rep. 868; Schultze v. Holtz, 82 Fed. Rep. 448. The court will not protect trade-marks used to deceive the public or if the owner cannot otherwise come into court with clean hands. Lawrence Co. v. Tennessee Co., 31 Fed. Rep. 776, 784; Krauss v. Peebles, 58 Fed. Rep. 585, 594; Simonds v. Jones, 82 Maine, 302; Joseph v. Macowsky, 96 California, 518; Holman v. Johnson, Cowp. 341; Fetridge v. Wells, 4 Abb. Pr. 144; Hall v. Coppell, 7 Wall. 542, 599. 198 U. S. Argument for Christie and Kinsey Companies. The Board cannot restrict the publication; if it publishes the quotations it must publish for all. Ladd v. Oxnard, 75 Fed. Rep. 703; Gottsberger v. Aldine Book Co., 33 Fed. Rep. 381; Keene v. Wheatley, Fed. Cas No. 7644. The Board realizes the full avails of its property when it sells the quotations to the telegraph companies and the delivery to those companies is necessarily a publication to the world. Bryant v. West. Un. Tel. Co., 17 Fed. Rep. 825, is not applicable; the distinction between restricted and general publication does not extend to matter of this kind. Pierce & Bushnell v. Werckmeister, 18 C. C. A. 431; Tribune v. Ass'd Press, 116 Fed. Rep. 126. Assuming there ever was a right of property in the Board to these quotations they have by usage become impressed with a public use and the Board is estopped from discriminating with reference to such use. Exchange v. Board of Trade, 127 Illinois, 153; Commission Co. v. Live Stock Exchange, 143 Illinois, 239; Board of Trade v. Central Exchange, 196 Illinois, 396; Munn v. Illinois, 94 U. S. 126, and Rose's notes thereto; State v. Gas Co., 34 Ohio St. 572; Lindsey v. Anniston, 104 Alabama, 261; People v. King, 110 N. Y. 418; Rushville v. Gas Co., 132 Indiana, 575; Zanesville v. Gas Co., 47 Ohio St. 1; White v. Canal Co., 22 Colorado, 198; Water Works Co. v. Schotter, 110 U. S. 347; Railroad Co. v. Wilson, 132 Indiana, 517; B. & O. Tel. Co. v. Bell Telephone Co., 23 Fed. Rep. 539; Cotting v. Stock Yards Co., 183 U. S. 79. The conditions. exacted of the public in the contract with the telegraph companies are unreasonable and tend to create a monopoly. Kalamazoo &c. Co. v. Sootsma, 84 Michigan, 194; Railroad Co. v. Langlois, 24 Pac. Rep. 209; Lindsey v. Anniston, 104 Alabama, 261; Lough v. Outerbridge, 143 N. Y. 277; Railroad Co. v. Bowling Green, 57 Ohio St. 345. Such contracts also violate the Sherman Anti-Trust Act. Carter-Crume Co. v. Peurrung, 86 Fed. Rep. 439. The business of telegraphing these quotations is interstate commerce. Pensacola Tel. Co. v. West. Un. Tel. Co., 96 U. S. 1; West. Un. Tel. Co. v. Texas, Argument for Edwin Hawley and Frank H. Ray. 198 U. S. 105 U. S. 460; West. Un. Tel. Co. v. Pendleton, 122 U. S. 347; Addyston Pipe Case, 175 U. S. 241; Gibbons v. Ogden, 9 Wheat. 1, 189, 210; Brown v. Maryland, 12 Wheat. 447; Mobile v. Kimball, 102 U. S. 691; Bowman v. Chicago R. R. Co., 125 U. S. 490; Ferry Co. v. Pennsylvania, 114 U. S. 203; Hopkins v. United States, 171 U. S. 578, 590. Mr. Julien T. Davies, Mr. Abram I. Elkus and Mr. Garrard Glenn by leave of the court, submitted a brief in behalf of Edwin Hawley and Frank H. Ray, solely on the nature of a wagering contract: Contracts for purchase and sale of a commodity, not to be delivered but only to be performed by advancing and paying differences, are void at common law in the absence of statute. Irwin v. Williar, 110 U. S. 499; Ball v. Davis, 1 N. Y. St. Rep. 517; Flagg v. Gilpin, 17 R. L. Ired. 1, 10; Rumsey v. Berry, 65 Maine, 575; Gregory v. Wendell, 39 Michigan, 337; Mohr v. Meisen, 47 Minnesota, 228; Brua's Appeal, 55 Pa. St. 294; Cunningham v. Bank, 71 Georgia, 400; Cothran v. Ellis, 125 Illinois, 496. The form of the contract is immaterial and the test is the actual intent of the parties at the time of making the contract. Irwin v. Williar, 110 U. S. 499; Higgins v. McCrea, 116 U. S. 671; Embrey v. Jemison, 131 U. S. 336; Pierce v. Rice, 142 U. S. 28; Story v. Salomon, 71 N. Y. 420; Peck v. DoranWright Co., 57 Hun, 343; Kenyon v. Luther, 4 N. Y. Supp. 498; Cover v. Smith, 82 Maryland, 586; Lester v. Buel, 49 Ohio St. 240; Rumsey v. Berry, 65 Maine, 570; Gregory v. Wendell, 39 Michigan, 337; Flagg v. Baldwin, 38 N. J. Eq. 219; Sharp v. Stalker, 63 N. J. Eq. 596. This intent may be proven by the circumstances surrounding the transactions and such proof is received with great liberality. Kenyon v. Luther, 4 N. Y. Supp. 498; Ball v. Davis, 1 N. Y. St. Rep. 517; Dwight v. Badgely, 60 Hun, 144; Peck v. Doran-Wright Co., 57 Hun, 343; Yerkes v. Salomon, 11 Hun, 471; Mackey v. Rausch, 39 N. Y. St. Rep. 232; In re |