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ing to appellant's company joint notes, drawing interest, and payable one-third in one year, one-third in two years, and one-third in three years, and, if they failed to immediately join in the execution of such notes, then the whole sum, to wit, $3,000, to become immediately due and payable in cash; that immediately after the signing of this contract said subscribers, at a meeting in which all participated, formed a company and elected from their number a president, secretary, and treasurer; that thereafter and about March 6, 1903, at said county of Manitowoc, "said defendants, relying upon said subscription contract of these contract of these plaintiffs, and of the defendant John Guttman, and of their said horse company, sold and delivered to the plaintiffs herein and the defendant John John Guttman one imported French Percheron stallion * * for the agreed sum of $3,000, and which said plaintiffs and the defendant John Guttman and their company agreed to pay in the manner and at the time as hereinbefore stated, and which was a fair and reasonable price therefor"; that thereafter and upon demand the three notes in suit were executed and delivered, and in conformity with their said agreement and contract. The answer further shows the transfer of said notes for value and in the due course of business by appellant's firm, before maturity, and prior to the beginning of the action, to one Alton P. Nave, and by Nave to the Citizens' National Bank of Attica, Ind.; that appellant's firm obtained said notes from the makers thereof in good faith and for value and in the due course of business, and not by fraud or misrepresentation; and, after denying all allegations in the complaint not admitted or controverted, demands that the action be dismissed as to them, with costs.
The pleadings, of which we have endeavored to give the substance, cover more than 40 typewritten pages of the record, and in our judgment exhibit facts showing that the Wisconsin court had jurisdiction of the person of appellant. Such jurisdiction, if the issues and facts so warranted, authorized the court to enter personal judgment. The case was one based upon appellant's fraud, and brought in a court of equity. Specific and general equitable relief was demanded. Fraud is a subject of equity jurisdiction, and upon the facts pleaded a court of equity works out the rights of the parties before it. In the case at bar it will hardly be denied that the Wisconsin court had the power to determine the rights of the parties upon the facts pleaded; and, this being true, any relief it might give by reason of such facts may properly be said to be in issue, and therefore within the rule requiring jurisdiction of the subject-matter and of the person. The Wisconsin court rendered a personal judgment against appellant, and the presumption is that it was according to the facts pleaded as
disclosed by the evidence at the trial. Exact justice between the parties being the purpose of a court of equity, it will not do to say that its power to grant relief can be circumscribed by any fast or technical rule. The rule expressed by the court in Real Estate Savings Inst. v. Collonious, 63 Mo. 290, 295, that such court "will not content itself in this regard by any halfway measures. It will not declare that a party has been defrauded of his rights and then dismiss him with a bland permission to assert, at new cost and further delay, those rights in another forum" (citing authorities)-is quite applicable here and expressive of our views. The same principle as announced by the Missouri court was ruled in the cases of Wade v. Bunn, 84 Ill. 117, Martin v. Martin, 44 Kan. 295, 24 Pac. 418, Odd Fellows' S. Bank's Appeal, 123 Pa. 356, 365, 16 Atl. 606, and McCalmont v. Lawrence, 1 Blatchf. (U. S.) 232, Fed. Cas. No. 8,676. See, also, 1 Pom. Eq. Jur. § 237, note 3.
We find nothing in the record to lead us to the conclusion that appellees knew, when they filed their suit in the Wisconsin court, that the notes had been transferred and were then in the hands of innocent purchasers. These facts were developed by the answers. It is said in Gates v. Paul, 117 Wis. 170, 191, 94 N. W. 62, that "if one sues in equity in good faith and fails to establish his cause, but shows a state of facts entitling him to recover at law, the court, having rightfully obtained jurisdiction for a proper purpose, may retain the cause and grant just such relief as upon the facts the plaintiff appears entitled to, whether at law or in equity." To the same effect is the ruling in the case of Milkman v. Ordway, 106 Mass. 232, 253. See, also, 1 Pom. Eq. Jur. § 237, note 3. In our opinion the better reasoning and the weight of authority is against appellant's contention and supports the ruling of the trial court.
The last reason in support of appellant's motion for a new trial is that the judgment is excessive. After a careful examination of the record upon this question we are of the opinion that the ruling of the trial court in this particular was right.
Finding no error in the record, the judgment is affirmed.
(38 Ind. A. 565) WESTERN UNION TELEGRAPH CO. v. SEFRIT. (No. 5,819.) (Appellate Court of Indiana, Division No. 2. Oct. 3, 1906.)
Lews 1885, p. 151, c. 48, requires every telegraph company to transmit messages impartially, in good faith, and in the order of time in which they are received, and not to discriminate in rates or service, and provides a penalty for its violation. Held, that such section was not limited to willful wrongdoing, but that the penalty was recoverable for the negligent failure to comply with its terms.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, §§ 79, 80.]
2. SAME TRANSMISSION.
Laws 1885, p. 151, c. 48, requiring telegraph companies to transmit messages with impartiality, in good faith and in the order of time in which they are received, and providing a penalty for a failure to do so, includes prompt "delivery" as well as transmission.
[Ed. Note.-For cases point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 79.] 3. SAME-DELIVERY LIMITS.
Laws 1885, p. 151, c. 48, imposes a penalty on telegraph companies for failure to transmit messages without discrimination in the order of their receipt, and Act 1852, § 3 (1 Rev. St. 1852, c. 107), requires such companies to deliver all dispatches by messenger to the persons to whom the same are addressed or to their agents, provided the addressees or agents reside within a mile of the telegraph station or within the city or town in which such station is located. Held, that the latter section had no application to a telegram directed to an addressee in care of the conductor of a railroad train well known to the agent of the telegraph company, and that the latter was liable for the penalty prescribed for the agent's negligent failure to deliver such telegram to the conductor of the train on arrival.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Telegraphs and Telephones, § 79.
Appeal from Circuit Court, Daviess County; H. Q. Houghton, Judge.
Action by Charles G. Sefrit against the Western Union Telegraph Company. From a judgment for plaintiff, defendant appeals. Affirmed.
Chambers, Pickens, Moores & Davidson, O'Neall & O'Neall, and Geo. H. Fearons, for appellant. Gardiner, Slimp & Gardiner, for appellee.
COMSTOCK, P. J. Appellee recovered judgment against appellant in the Daviess circuit court for $100, the penalty prescribed by the Act of April 8, 1885, entitled "An act prescribing certain duties of telegraph and telephone companies, prohibiting discrimination between patrons, etc." (Acts 1885, p. 151, c. 48.) On August 26, 1904, plaintiff delivered to the defendant, at its office in Plainfield, a dispatch addressed to Lucian W. Wilder, care of conductor E. & I. train No. 34, Petersburg, Ind. The dispatch was transmitted at once. Upon receipt at Petersburg, the point of destination, it was copied, inclosed in an envelope and addressed to addressee, in care of said conductor, but, through negligence, was not delivered. Defendant's agent at Petersburg, after the dispatch reached said place on the same day, transacted business with said conductor at a time when he could have delivered the dispatch. A demurrer to the complaint was overruled, and the cause was put at issue by general denial. The court made a special finding of facts, and stated conclusions of law thereon, to which conclusions appellee excepted.
In support of the appeal, appellant present three points or propositions: (1) Having found the telegraph company negligent in its omission to deliver the dispatch, the
court erred in its conclusion that the plaintiff was entitled to recover from the defendant the statutory penalty. A penalty may not be recovered for negligence. (2) Having found that the dispatch was transmitted to the point of destination without delay, but that the omission of it lay in the failure to deliver the dispatch to the addressee at the point of destination, the court erred in its conclusion of law, and the plaintiff was not entitled to recover the statutory penalty. Transmission under the penal section of the statute does not mean delivery. (3) The penalty is not recoverable where neither the addressee of the dispatch or his agent nor the person in wnose care the dispatch is addressed resides within one mile of the station to which the dispatch is addressed, nor within the town or city within which said station is.
The first and second of these points are decided adversely to appellant's claim. In the first in Western Union Telegraph Company v. Braxtan (Ind. Sup.) 74 N. E. 985, and cases cited.
As to the third proposition, so much of the act of 1885 (Laws 1885, p. 151, c. 48) as is pertinent, is as follows: "Every telegraph company with a line of wires wholly or partly within this state, and engaged in doing a general telegraphic business, shall during the usual office hours receive dispatches, whether from other telegraph lines or other companies or individuals, and shall, upon the usual terms, transmit the same with impartiality and in good faith and in the order of time in which they are received, and shall in no manner discriminate in rates charged or words figures charged for or manner or conditions of service between any of its patrons, but shall serve individuals. ** *". The Supreme Court in Rees v. Western Union, etc., 123 Ind. 294, 24 N. E. 163, 7 L. R. A. 583, has held that a failure to deliver a dispatch in accordance with the requirements of section 3 of the act of 1852, approved May 13, 1852 (1 Rev. St. 1852, c. 107), is a failure to transmit under the provisions of the act of 1885, supra, and renders the telegraph company thus guilty, liable for the statutory penalty. Said section 3 is as follows: "Such companies shall deliver all dispatches, by messenger to the person, to whom the same are addressed, or to their agents, on payment of any charges due for the same; provided. such persons or agents reside within one mile of the telegraphic station or within the city or town in which such station is." There is nothing in the act of 1885 regulating the distance or prescribing the limits within which telegraph companies shall deliver messages. Section 3 of the act of 1852 relates solely to the duties of telegraph companies as to the manner of delivery ("by messenger") dispatches to addressees who reside, or whose agent resides, within the prescribed limits.. The section relieves the company from delivery by messenger, telegrams to those not re
siding within one mile of the telegraphic station or within the city or town within which said station is located.
The act of 1885 requires the delivery of all dispatches which the company undertakes to transmit. It is a rule of construction that a statute should be construed as a whole so as most reasonably to accomplish its purpose. All consistent statutes which can stand together, though enacted at different times, relating to the same subject, are called statutes in pari materia and treated prospectively, and construed together as though they constituted one act. They are made to operate, as far as posible, consistently with the evident intent of the latest enactment. Lewis' Sutherland Statutory Construction (2d Ed.) § 443, and cases cited in foot notes. The intention of the Legislature manifest in both acts, was to secure the prompt and impartial delivery of messages. The provision of the act of 1852 was to relieve the telegraph company from the possible task of an unaided and, perhaps, fruitless search for an addressee, a stranger through a wide territory. It could not have been the purpose to excuse the telegraph company from the discharge of its simple duty when it could perform it with but slight if any inconvenience. The office of appellant was in the depot of said E. & I. railroad company where said E. & I. train No. 34 regularly stopped, and it stopped on the said day. Appellant's agent, Webb, and conductor Smith, of said train were well acquainted with each other and had been for a long time prior to August 26, 1904, and said Webb knew at that time that said train was designated as E. & I. train No. 34 and that said conductor and said addressee were acquainted with each other and upon the arrival of said train said appellant's agent conversed and transacted business with said conductor, while it was stopping at said station, but wholly failed to deliver said dispatch to him. Appellant cites two cases. Western Union, etc., Co. v. Tinmons, 93 Ga. 345, 20 S. E. 649; Moore v. Telegraph Co., 87 Ga. 613, 13 S. E. 640.
Both cases are based upon a statute imposing a penalty upon telegraph companies for failure to deliver messages to persons to whom they were addressed, who at the time resided within one mile of the telegraph office or within the town or city within which the office is. No other statute is referred to. In each case the court held the nonresident could not recover. In the firstnamed case the plaintiff was a transient visitor. In the course of the opinion, the court say: If, after notifying the operator that he, the plaintiff, would be in Knoxville and to send the messages to him there, he had given him a definite address, such as a given street, a number or the name of the owner of a particular house where the message should be delivered, perhaps he would have come within the spirit of the
law, if not the letter of it." The facts bring the case before us, within the spirit of the act of 1852. This message was not one to be delivered to a stranger. It appears from the findings that since the message was delivered by the plaintiff to the defendant for delivery to the addressee, the defendant has received, transmitted, and delivered other telegraph messages to other addressees at said town of Petersburg, some of whom have resided within said town and within one mile of the telegraph station situated thereat. The findings show that the defendant was not free from impartiality and was wholly lacking in diligence, and, under either statute, the company is liable.
(38 Ind. A. 587)
BUSH et al. v. BULLINGTON et al. (No. 6,054.)
(Appellate Court of Indiana, Division No. 2. Oct. 5, 1906.)
RELIGIOUS SOCIETIES-ACTION BY TRUSTEES
A complaint which alleges that plaintiffs are the elected, qualified, and acting trustees of the "Christian Church, or Church of Christ, at F., and as such are the owners and entitled to the possession of real estate described, and that defendants, as trustees of the "Christian Church" at F., hold possession of such real estate without right, is not open to the objection that, because of the use of the word "or," it shows that plaintiffs are attempting to act as trustees of two churches, but it avers that they are trustees of a church of one name and that defendants are trustees of a church of another
Appeal from Circuit Court, Washington County; Thos. B. Buskirk, Judge.
Action by Charles P. Bush and others, trustees, against Charles Bullington and others. From a judgment rendered on sustaining a demurrer to the complaint, plaintiffs appeal. Reversed and remanded.
Hottel, Cauble & Hottel and Elliott & Houston, for appellants. Mitchell & Mitchell and Harvey Morris, for appellees.
ROBY, J. "The plaintiffs complain of the defendants, and for cause of action say: That they are the duly elected, qualified, and acting trustees of the Christian Church, or Church of Christ, at the town of Fredericksburg, Washington county, in the state of Indiana, and as such they are the owners and are entitled to the possession of the following described real estate: [Describing it.] That defendants, as trustees of the Christian Church at the town of Fredericksburg," etc., "now hold possession of said real estate without right," etc. "Wherefore," etc. To this complaint a demurrer for want of facts was sustained. Plaintiffs declined to plead further, and appeal from the judgment thereupon rendered.
It is argued in support of the ruling that the complaint is bad, for the reason that the
disjunctive "or" shows that the plantiffs are attempting to act as trustees for two churches, and that more than one church cannot be included within one corporation. There is nothing on the face of the complaint, or otherwise in the record, from which we are able to say that the appellants are not trustees, as they aver themselves to be, of the "Christian Church, or Church of Christ." The appellants aver themselves to be trustees of a church by one name, and the defendants to be trustees of a church of another name. The complaint conforms to the requirements, and the demurrer should have been overruled.
Judgment reversed, and cause remanded for further proceedings.
(39 Ind. App. 224)
BELL, Auditor, et al. v. MEEKER et al. (No. 5,496.)1
(Appellate Court of Indiana, Division No. 1. Out. 3, 1906.)
1. TAXATION-ASSESSMENT -INVALIDITY-INJUNCTION-PAYMENT.
Where suit is brought to enjoin that part of certain taxes only that were claimed to be invalid, complainants were not required to pay the taxes not sought to be enjoined as a condition precedent to their right to sue.
[Ed. Note.-For cases in point, see vol. 45, Cent. Dig. Taxation, § 1244.]
2. SAME EQUALIZATION STATE BOARD OF REVIEW-CLASSIFICATION.
Burns' Ann. St. 1901, § 8551, provides that it shall be the duty of the state board of equalization to examine the abstracts of all real and personal property assessed for taxation and equalize the assessments as thereafter provided. Section 8552 requires the county auditors to transmit to the State Auditor an abstract of the assessment of property showing the number, value, and average value of each class of enumerated property, the value of each item of unenumerated property, the total value of personal property, the value of all land in each township without improvements, the value of all improvements, and the value of such land with improvements, etc. Section 8553 declares that the board, in equalizing the valuation of property, shall consider separately railroad property, lands, town and city lots, and personal property, etc. Held, that whatever increase or decrease the state board make in the assessments returned by the local officers must be by percentages upon the classes of property so specified, and that the board had no power to reclassify "land and the improvements thereon" and raise the valuation of improvements apart from the land.
3. SAME-POWER OF Board.
The state board of tax commissioners is a statutory body with only such power with reference to the assessment of property for taxation and the equalizing of assessments as is expressly conferred by statute.
Appeal from Circuit Court, Fountain County; Jos. M. Rabb, Judge.
ROBINSON, C. J. At Its meeting in 1903, the state board of tax commissioners entered an order concerning the assessments of the real and personal property of each county in the state, which order, omitting such parts as relate to counties other than Fountain county, was as follows: "It is hereby ordered by the state board of tax commissioners of the state of Indiana, after a full and fair consideration of the question of the values of the real estate and improvements thereon within the state of Indiana, that said real estate and the improvements thereon be equalized by changing and modifying the assessments as returned to this board by the several county boards of review, as follows: Fountain County. 'Average value per acre of lands as returned by the county boards, $25.58. Average value per acre of lands and improvements as returned by the county board, $28.41.' Action of the state board of tax commissioners, in increasing or decreasing the assessments as returned by the county boards of review: Land as returned, 50 per cent. increase on improvements and 5 per cent. increase on lots and improvements in Attica and. Covington." Marked by star, referring to note 1, hereafter set out. notes: "Notes. (1) Increase on improvements in towns and cities includes improvements on lands not platted. (2) Increases or decreases on lands do not apply to lands in towns or cities in tracts of one acre or less. (3) Increases or decreases on improvements on lands do not apply to improvements on unplatted lands in towns and cities. (4) Increases or decreases on lands or improvements do not apply to platted lots in unincorporated towns." This order was duly certified to the Auditor of State, and the increased valua tion so ordered as to Fountain county duly placed upon the tax duplicate of that county. Appellees, owners of lands with improvements thereon outside of cities and towns, sue to enjoin the collection of so much of the taxes assessed against them as is made up of this increased assessment made by the state board of tax commissioners. A demurrer to appellees' complaint was overruled, and, appellants declining to plead further, a decree was entered in appellees' favor enjoining appellants, auditor and treasurer, from collecting, or attempting to collect, any tax based upon such increased assessment.
The question presented is whether the state board of tax commissioners has authority, in equalizing assessments, to act upon a classification made by the board as indicated in the above order. As the suit is brought to enjoin that part of the taxes only that are claimed to be invalid, equity does not require that such taxes as are not sought to be enjoined should be paid before bringing suit. The pleading proceeds upon the theory that the whole of the 50 per cent. increase on improvements on lands, made by the state board, is void. This assessment, so made by the board, is, as an entirety, claimed to be Rehearing denied.
Suit by Theodore M. Meeker and others against James T. Bell, as auditor, etc., and others. From a judgment for plaintiffs, defendants appeal. Affirmed.
Chas. W. Miller, O. B. Ratcliff, and O. P. Lewis, for appellants. C. R. Milford, C. M. McCabe, Lucas Nebeker, and Benj. Crane, for appellees.
void. In Yocum v. First Nat. Bank, 144 Ind. 272, 43 N. E. 231, a county board of review increased the assessment of a bank's capital stock, and suit was brought to enjoin the collection of taxes on this increased assessment on the ground that the board's order was void. In that case the court said: "If the complaint were to enjoin the collection of taxes, part of which were legal and part illegal, the complainant would be required to pay or tender payment of the legal part, and this averment would be necessary before injunctive relief would be granted; but that is not this case, nor is this case within the principle or rule which requires such averment to be made. This action is to set aside and annul a particular order alleged to be void, whereby a specific sum, to wit, $16,000, it is averred, was illegally added to the assessed value of appellee's property." See Board v. Griver, 115 Ind. 224, 17 N. E. 290; Hyland v. Brazil Block Coal Co., 128 Ind. 335, 26 N. E. 672. Section 8551, Burns' Ann. St. 1901 (section 133, Act March 6, 1891, as amended in 1901), provides: "It shall be the duty of the said board to examine the abstracts of all the real and personal property assessed for taxation in the several counties of this state as returned to the Auditor of State, and to equalize the assessments as hereinafter provided; but said board shall not reduce the aggregate assessed valuation below the true cash value, as defined in this act." Section 8552 provides that, for the purpose of properly equalizing the valuations of real and personal property and railroad property, the county auditors shall transmit to the State Auditor an abstract of the assessment of property "showing the number, value and average value of each class or kind of enumerated property, as shown by the assessment, the value of each item of unenumerated property, and total value of personal property, the value of all land in each civil township without improvements, the value of all improvements thereon, and the value of such land with improvements, and, in like order, all city or town inlots, and outlots, showing the value of such lots without improvements, the value of improvements, and the value of such lots with improvements," also main and side tracks and value of railroad property; "such abstract shall be arranged in such manner as to show by civil townships the number of acres, value and average value of improved lands, and in like manner the number of acres, value and average value of unimproved lands, total number of acres, total value and average value per acre of all lands, the number and value and average value of improved town or city lots, the number, value and average value of unimproved town or city lots, the total number of lots, total value and average value of all lots and the total value of all property real and personal"; that the value given in this abstract shall be the assessed valuation ex
cept in case of railroad property. Section 8553: "Said board, in equalizing the valuation of property as listed and assessed in the different counties, shall consider the following classes of property separately, viz.: Railroad property, lands, town and city lots, and personal property, and upon such consideration determine such rates of addition to, or deduction from the listed or assessed valuation of each of said classes of property in each county, or to or from the aggregate assessed value of each of said classes in the state, as may be deemed by the board to be equitable and just; such rates being in all cases even, and not fractional, and such rates as finally determined by said board, shall not be combined." It is provided by section 8554 that "counties shall be equalized by adding to the aggregate value of the lands, town and city lots and personal property, in every county in which said board may believe the valuation to be too low, such rate per centum as will raise the same to its proper proportionate value, and by deducting from the aggregate assessed value thereof in every county in which said board may believe the valuation to be too high, such per centum as will reduce the same to its proper value, as defined in this act." Section 8555 makes it the duty of the board to assess railroad property; section 8556 provides for tabulating the results; 8557, for certifying to the State Auditor, and he in turn to the county auditors; 8558, the extension of the rates by the county auditors. Section 8551 makes it the duty of the board to equalize the assessments of property for taxation as "hereinafter provided." Section 8553 expressly requires that, in equalizing the valuation of property, the board "shall consider the following classes of property separately, viz.: Railroad property, lands, town and city lots and personal property, and upon such consideration" determine such rates of increase or decrease in each class as should be made, and that such rates "shall not be combined." This classification is retained in the subsequent section, and (section 8556) "when said board shall have separately considered the several classes of property as hereinbefore required" the results shall be tabulated, "preserving, however, the prin ciple of separate rates for each class of property," and (section 8557) "shall certify to the Auditor of State the rates finally determined by the board to be added or deducted from the listed or assessed valuation of each class of property in the several counties." The above provisions are plain and explicit and clearly show that the Legislature intended that whatever increase or decrease the state board should make in the assessment as returned by the local officers, should be made by percentages and upon classes of property. Not only does the statute require that each class shall be considered separately, but also that the rates of increase or decrease on these several classes shall