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Upon a second appeal this court would have no power to reverse or change its former judgment. Rising v. Carr, 70 Ill. 596; Newberry v. Blatchford, 106 id. 584; Saunders v. Peck, 131 id. 407.

The Appellate Court having had jurisdiction of the parties and subject matter, its first judgment binds this court. The opinion held the charge insufficient. The judgment was final. Wadhams v. Gay, 83 Ill. 250.

The rule stricti juris applies to cases of this character. Society v. Commonwealth, 52 Pa. St. 133; Ryan v. Cudahy, 157 Ill. 108; Railroad Co. v. Suffern, 129 id. 284; People v. Crabb, 156 id. 155.

The powers conferred upon the directors of the board of trade are governmental, as respects that body. In this case it was not denied that pecuniary loss followed and would be continuing. Weaver v. Fisher, 110 Ill. 146; Jones

v. Fisher, 116 id. 68.

The suspension was not, in terms, to be at the will of the directors or until appellee should apply for reinstatement. It was void for uncertainty, or out of proportion to the alleged offense. Const. 1870, art. 2, sec. 11; People v. Pirfenbrink, 96 Ill. 68.

MURRY NELSON, Jr., also for appellee:

Inasmuch as the answer added nothing to the case made by the petition and demurrer, the decision of the Appellate Court upon that case, (Nelson v. Board of Trade, 58 Ill. App. 399,) is the law of this case, for it was not appealed from.

Petitioner is a charter member of the board of trade. His rights flow from the charter. He has signed no agreement to abide by rules made since his joining, and such rules, if not authorized by the charter, are of no effect as to him. The board of trade has no charter power to suspend. See Charter, sec. 6.

Mr. JUSTICE CARTWRIGHT delivered the opinion of the court:

The relator, Murry Nelson, filed his petition in the Superior Court of Cook county for a writ of mandamus to compel the Board of Trade of the city of Chicago, and its officers and directors, the appellants, to permit him to resume his privileges and rights as a member of said board, from which he had been suspended. To the petition a demurrer was filed, which was sustained, but on appeal the judgment was reversed by the Appellate Court and the cause was remanded. Upon the reinstatement of the case in the Superior Court an answer was filed to the petition, to which a demurrer was interposed, and the demurrer having been sustained, judgment was entered in accordance with the petition. That judg ment was affirmed by the Appellate Court.

The facts set out in the petition which are necessary to be stated are substantially as follows: Prior to 1859 the Board of Trade of the city of Chicago was a voluntary unincorporated association, organized for the following purposes: "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 adjustments of business disputes; to acquire and disseminate valuable commercial and economic information, and, generally, to secure to its members the benefits of co-operation in the furtherance of their legitimate pursuits." In that year it was incorporated by a special act of the General Assembly, creating the persons then composing it a body politic and corporate, with power to make such rules, regulations and by-laws from time to time as its members might think proper or necessary for the government of the corporation, not contrary to the laws of the land. By section 6 of the act of incorporation it was provided: "Said corporation shall have the right to admit or expel such


persons as they may see fit, in a manner to be prescribed by the rules, regulations and by-laws thereof." Among the by-laws adopted was one which provided: "When a member of the association shall be guilty * * of any act of bad faith, or any attempt at extortion, or of any other dishonorable or dishonest conduct, he shall be censured, suspended or expelled by the board of directors, as they may determine from the nature and gravity of the offense committed." Provisions were also made in the by-laws regulating the making of charges against members, and the action of the board of directors upon the same.




The relator was president of the National Elevator and Dock Company, and James B. Wayman was secretary and treasurer thereof, with the usual powers and duties of like officers of corporations. On August 31, 1894, charges were preferred against the relator, as follows: "CHICAGO, Aug. 31, 1894. To the Board of Directors of the Board of Trade of Chicago: "GENTLEMEN—The undersigned, chairman of a committee of the association, hereby charges Murry Nelson with an act of bad faith and dishonorable conduct in not carrying out the terms of an agreement signed by J. B. Wayman, secretary and treasurer of the National Elevator and Dock Co., a copy of which agreement is hereto attached.



To the charges were attached a copy of an amended rule of the board of trade concerning warehouses which were declared regular, and an agreement signed by said National Elevator and Dock Company, by said J. B. Wayman, secretary and treasurer, together with other owners of warehouses, as follows: "We, the undersigned elevator proprietors and managers, agree to apply to have our elevators made regular if the above section of rule 21, as presented to us, is adopted by the board of trade." Communications passed between the relator and the president and directors of the board of trade, and a time was fixed

for the hearing of the charges. The hearing was twice postponed, of which the relator had due notice, and finally the hearing took place, when he attended and was found guilty of the charge made and suspended from the privileges of the board. The relator made a lengthy written statement to the president and directors of the board of trade in reply to the charges, claiming that the agree ment could not be considered a contract from want of mutuality; that it was not based upon sufficient consideration; that the board of trade could not complain of his failure to perform it because not a party to it, and stating that Wayman, as secretary and treasurer of the National Elevator and Dock Company, exceeded his authority in signing the agreement; that neither he nor Wayman owned a majority of the stock, and could not bind the corporation in such a matter without a resolution of the board of directors, and that the controlling interest in the corporation was held in trust for wards of court in Erie county, Pennsylvania, so that the officers could do nothing whatever not strictly in accord with the laws governing trustees.

It was not alleged by the petition that there was any want of jurisdiction in the board of directors to hear and determine charges against members of acts of bad faith or dishonorable conduct under the by-laws in question, or that there was any irregularity in the proceedings of the board, but it was averred that the failure to carry out the agreement annexed to the charge did not constitute an act of bad faith or dishonorable conduct, and therefore the charge made was not sufficient to confer jurisdiction in this instance, and that the relator was not guilty, for want of power to carry out such agreement. The court was called upon to review the proceedings and to re-examine the questions involved on these grounds.

The answer to which the demurrer was sustained set up the regularity of the proceedings, the appearance of the relator and the trial before the board of directors,

and averred that great loss and damage resulted to the members of the board of trade by the willful refusal of the relator to carry out the agreement, and especially to members who held warehouse receipts of said company, who had lost a great many thousand dollars by the conduct of petitioner, and averred that the board of directors, upon the hearing, found, as matters of fact, that Wayman had full power to sign the said agreement on behalf of the National Elevator and Dock Company; that the petitioner was president, and knew that said agreement had been signed on behalf of said company and never repudiated the same; that by his conduct he led the members of the board of trade to believe that the corporation would carry out the agreement if section 1 of rule 21, as amended, was adopted; that the members of the board voted upon the proposition to amend such rule under such belief; that after such rule was adopted the petitioner declined to permit the National Elevator and Dock Company to carry out the agreement; that it was within his power to carry it out; that he willfully refused so to do, and that such conduct on his part was an act of bad faith, and dishonorable.

It is first contended that the decision of the Appellate Court when the case was first taken there is of binding authority in this court. No appeal was taken from that judgment, and therefore it is insisted that it became res judicata, and that this court is concluded and powerless to examine the questions involved. This is not the law. The judgment of the Appellate Court on that appeal merely reversed the judgment of the Superior Court and remanded the cause to that court for further proceedings not inconsistent with the opinion of the Appellate Court. This direction was no more than the law requires of the trial court in every case. There was no order to do any specific thing. Such a judgment is not final, and does not conclude the parties in this court. No appeal could be taken from the former judgment. Harzfeld v. Converse,

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