taken to Clayton, which is about six miles from

individuals, and shall, upon from Danville; that about 12:10 a. m. of the usual terms, transmit the same with March 20, 1904, before transferring said par- impartiality and in good faith, and in the ty to the Vandalia train, he delivered to ap- order of time they are received, and shall in pellant's agent and operator at its office and no manner discriminate in rates charged, or place of business in Indianapolis a written words or figures charged for, or manner or message, as follows: “Union Station Indian- difference of service between any of its paapolis, Indiana. 3–20–1904. To McClelland's trons, but shall serve individuals, corporaBus Man, Danville, Indiana: Send wagons tions and other telegraph companies with imto Clayton for corpse, 43 goes over the Van. partiality.” The latter section prescribes a Chas. F. McClelland.” It is further averred penalty for violating the former. that appellee then and there notified appel- Two objections are urged to the complaint: lant's agent that the busman to whom the First, that it is insufficient because it failed message was addressed, with other persons, to allege an omission to transmit the diswere then waiting at appellant's office and patch in the order of time in which it was replace of business at Danville, for orders and ceived, with reference to the receipt and instructions as to what place they should transmission of other dispatches handled by meet appellee, and said funeral party; that appellant at the same office, and, second, that he then and there paid appellant's agent 35 the complaint proceeds upon inconsistent cents, upon receipt of which it undertook theories, because it pleads a “willful wrongand agreed to promptly “transmit and deliver doing and negligence in the same paragraph." said message"; that appellee and said funeral The first objection is not well grounded, for party arrived at Clayton about 1 o'clock a. there is a positive averment that appellant m. of said day; that they were compelled to acted with bad faith, negligence, partiality, wait and remain on the streets and platform, and discrimination against appellee, and negexposed to the inclement winter weather, lected to transmit and deliver the message for three hours, on account of the nonarrival “in the order of time in which the same was of appellee's busman with the necessary con

received and * *

postponed the transveyances, etc. The complaint concludes with mission and delivery of said message out of the following averment: “And plaintiff says its order," etc. As to the second objection, that notwithstanding the aforesaid contract it is sufficient to say that the complaint does and agreement to promptly transmit and de- not proceed upon inconsistent theories, for liver the above message, and notwithstand- the theory of the complaint is to recover a ing it was also their legal duty to promptly penalty for appellants violation of the duand without delay deliver said message on ties laid upon it by statute. Whether it vioaccount of its being an emergency message,

lated that duty by reason of willfulness, as disclosed upon its face, that said defend- discrimination, or negligence can make no ant, acting with bad faith, negligence, par- difference. If the complaint is bad for dutiality, and discrimination against this plain- plicity, the way to remedy the defect is tiff, failed and neglected to transmit and de- either by motion to strike out or to separate liver said message in the order of time in the causes of action into paragraphs. Rogers which the same was received, and willfully v. Smith, 17 Ind. 323, 79 Am. Dec. 483; and purposely postponed the transmission Evans v. White, 53 Ind. 1; Hendry v. Henand delivery of said message out of its order dry, 32 Ind. 319; Barnes v. Stevens, 62 Ind. for about three hours' time, during all of 226. In Western Union Telegraph Company which time the plaintiff's busman, to whom v. Ferguson, 157 Ind. 37, 44, 60 N. E. 679, said message was addressed, and the friends it was held that a breach of statutory duty and relatives awaiting the arrival of said results from the failure, whether intentionfuneral party, as aforesaid, were waiting in ally or otherwise, to transmit messages in the defendant's office and place of business, the order of time in which they are received. in the town of Danville, Ind., and in the A telegraph company is required by the statimmediate presence, and holding conversa- ute to receive and transmit dispatches: (1) tions with the defendant's agent and operator. With impartiality and good faith; (2) in the And that said defendant wrongfully, negli- order of time in which they are received; and gently, with partiality and discrimination, (3) without discrimination or conditions. of withheld said message for about three hours' service. The failure to discharge any of time before delivering the same to the plain- these duties subjects the company to the tiff's busman, as aforesaid." The prayer of penalty in favor of the aggrieved party. In the complaint is that appellee have judgment Western Union Telegraph Co. v. Braxton for $100, “the statutory penalty in such (Ind. Sup.) 74 N. E. 985, it was held: "The cases."

suggestion that discrimination' and 'parThe action is based upon sections 5511 and tiality,' as used in the statute, imply will5512 of Burns' Annotated Statutes of 1901. fulness and positive wrongdoing on the part The former section provides: “That every of the company, as grounds for the penalty, telegraph company with a line of wires wholly is without substance, because the failure to or partly in this state, and engaged in doing deliver a dispatch in the order of time in a general telegraph business, shall during which it is received may occur from willfulthe usual office hours, receive dispatches ness, as well as from carelessness, and the

78 N.E.-43

consequences to the sender are precisely the appears so upon its face. Not only that, but same." The complaint charges a dereliction appellant's receiving agent was advised by apof a statutory duty, in the substantial lan- pellee of that fact. As to messages of this guage of the statute prescribing that duty, class it was said in Reese v. W. U. Tel. Co., is not subject to the objections urged, and 123 Ind. 295, 24 N. E. 163, 7 L. R. A. 583: the demurrer to it was properly overruled. "When the importance of a telegraph message

By its motion for a new trial appellant appears on its face, the company will be held presented several questions for the considera- to have notice of the urgency of its delivery, tion of the trial court, but has waived its and to have contracted with reference to it. right to have many of them decided on ap- It is the duty of the company under such cirpeal, by its failure to discuss them. The cumstances to make prompt and reasonable only questions presented by the motion and effort to deliver the message to the person to discussed by counsel are that the evidence is whom it was addressed, and, failing to do so, insufficient to support the verdict, and that the the company will be guilty of negligence." court erred in giving one instruction on its

The message was not delivered to the adown motion, and in refusing to give one tend- dressee for two hours after it was received ered by appellant. The point of contention by the company. It was urgent, and the apon the part of appellant is that the evidence pellant was advised of that fact. The evishows that the dispatch was delivered with

dence shows that the message would be rereasonable promptness, and that the evidence ceived at Danville almost instantly from the fails to show that it was not delivered in

time it was put upon the wires at Indianapothe order of time in which it was received. lis, and that an excessive rate was charged The evidence shows that the message was de- and paid. This evidence sustains the verdict livered to appellant's agent and operator at and judgment. The excessive charge, if noththe Union Station at Indianapolis, a few min

thing else, was a discrimination against aputes before midnight; that appellee ex

pellee, under the statute. We think that the plained to him its urgency, and told him his

facts before us show an unreasonable delay "bus man" would be at the station at Dan

in transmitting the dispatch. This being ville to receive it. The "bus man" was at

true, it was not incumbent upon appellee to the station at Danville at 12 o'clock, and

show, as contended by counsel for appellant, waited there until about 2 o'clock, when the

that other messages for Danville were remessage was delivered to him. It took an

.

ceived at the appellant's Indianapolis office hour to drive to Clayton. The operator at

and forwarded before the one sent by him, the Union Station had to send the message to

for the law places that burden upon appelthe main office in Indianapolis, from whence

lant. Julian v. Western Union Tel. Co., 98 it had to be transmitted to Danville. It was

Ind. 328. stipulated by the parties, as a part of the evi

The sixth instruction tendered by appeldence, that the message sent from Indianapo

lant and refused by the court was to the eflis to Danville arrived at its destination prac

fect that, if the evidence failed to show that tically instantaneously after it was placed on

appellee's message was set aside, and other the wire. Appellee testified that he paid ap

messages from Indianapolis to Danville, pellant's agent at the Union Station 35 or 38

which were received after appellee's miessage cents for sending the message, and that after

were forwarded or delivered before it, then the agent handed him the change he “pushed

the verdict should be for the defendant. This the telegram off to one side and leant back in

instruction does not correctly state the law, his chair and picked up a paper or book or something." He also testified that he thought

and was properly refused. See the following

authorities: Julian v. Western U. T. Co., the agent was reading. The evidence fur

98 Ind. 327; Telegraph Co. v. Griswold, 37 ther developed the fact that the regular rate for sending a message of 10 words or less

Ohio St. 301, 41 Am. Rep. 500; Bartlett v. from Indianapolis to Danville was 25 cents,

Western Union Tel. Co., 62 Me. 209, 16 Am. and 2 cents for each additional word. The

Rep. 437; Baldwin v. United States Tel. Co. telegram consisted of 12 words, and hence

45 N. Y. 744, 6 Am. Rep. 165; Turner v. the regular rate would have been 29 cents.

Hawkeye Tel. Co., 41 Iowa, 458, 20 Am. Rep. Appellant's agent did not deny appellee's

605; Western Union Tel. Co. v. Meek, 49

Ind. 53. statement that he paid him 35 or 38 cents for sending the message. From these facts

The sixth instruction given by the court, we must determine whether or not appellant to which appellant excepted, was as follows: is liable to appellee for the statutory penalty.

“If a party to a suit has evidence peculiarly This being a penal statute it must be con

within their own knowledge and do not prostrued strictly; but to do this, as was held

duce it, the presumption is that, if it were in Western Telegraph Company v. Ferguson, produced, it would be against them. This rule supra, we are not required to "gaze fixedly of law applies alike to civil as well as crimiupon a single phrase, and be oblivious to the nal cases.” This instruction correctly states act as a whole. * * But in construing

an abstract proposition of law, and the obit strictly, regard for the clear letter of the jections urged against it are not well foundstatute.” The message which appears in the ed. record was one of emergency, and it clearly Judgment affirmed,

three days before the first day of that term SANASACK V. ADER et al. (No. 5,842.)*

of the board, dismissed the application, (Appellate Court of Indiana, Division No. 1.

and adjudged that the appellant should Oct. 2, 1906.)

not receive license for two years thereafter.

He thereupon appealed from the decision 1. INTOXICATING LIQUORS-LICENSES-REMONSTRANCES-STATUTES.

of the board to the court below, at the Under Burns' Ann. St. 1901, § 7283-i, June term, 1905, of which Frank Ader, Wilas amended by Acts 1905, p. 7, c. 6, § 1, pro- liam Smith, Fletcher Smith, John P. Carr, viding that where three days before a regular session of the board of commissioners of a

and A. S. Buchanan appeared and filed a county, a remonstrance signed by a majority of "supplemental remonstrance,” in which these the legal voters of any township shall be filea four persons, designating themselves as legal against the granting of a license to any appli- voters of that township, who were such on cant, or against all applicants for the sale of intoxicating liquors, it shall be unlawful for February 3, 1905, being three days before the the commissioners to grant a license to any first day of the February term, 1905, of the and all applicants, etc., all remonstrances commissioners' court, and who, with a maagainst the granting of a license for the sale

jority of the legal voters of tùat township on of intoxicating liquors must be so filed as to come before the commissioners, from whose that day, filed a remonstrance in the auaction on an application an appeal may be ditor's office of that county against the grant. taken, and a remonstrance contemplated by the

ing of a license to the appellant to retail instatute cannot be filed originally in the circuit court on appeal.

toxicating liquors, etc., now remonstrated 2. SAME.

against the granting of a liquor license to A person applied for a liquor license while the appellant to retail, etc., "for the reason Burns' Ann. St. 8 7283-i, was in force. Such

that heretofore, on the 2d day of June, 1905, section providing that where three days be

Curtis Ader and 430 other legal voters of fore a regular session of the board of commissioners a remonstrance signed by a majority Center township, Benton county, Ind., did file of the legal voters of any township shall be in the auditor's office of Benton county, Ind., filed against the granting of a license to any applicant, it shall be unlawful for the board to

a remonstrance against the granting of a 11grant the license. The board found that a cense to any person to sell intoxicating liqremonstrance against the application was signed uors in said Center township, Benton county, by a majority of the legal voters of the town

Ind.; that said June 2, 1905, was three days ship, and the application was denied. The applicant appealed, and, pending the appeal, Acts

before the regular June session of the board 1905, p. 7, c. 6, § 1, amending section 7283-i, of commissioners of Benton county, Ind.; 80 as to provide for the filing of remonstrances, that said remonstrance so filed in said aunot only against a particular applicant, but

ditor's office of Benton county, on the said against any applicants, was enacted, and a new remonstrance against the granting of a license June 2, 1905, was signed by a majority of to all applicants was filed with the board, and the legal voters of said Center township, Benit determined that it was signed by a majority of the voters of the township. A supplemental

ton county, Ind.; that the board of commisremonstrance was filed in the circuit court,

sioners of Benton county, Ind., did, on June setting up the filing of the second remonstrance, 6, 1903, that being the time when the said reand the determination of the board thereon. monstrance was set for hearing under the Held, that the circuit court properly dismissed the application without finding whether or not

rules adopted for the business in said comthe remonstrance against the applicant individ

missioners' court, proceed to the bearing of ually was sufficient, but finding that the sec- said remonstrance so filed; and that after ond remonstrance was sufficient.

having heard evidence thereon, and being Appeal from Circuit Court, Benton Coun

fully advised in the premises, said board of ty; Jos. M. Rabb, Judge.

commissioners did find and duly enter a Proceedings by George Sanasack against judgment of record that said remonstrance Frank Ader and others to procure a liquor

so filed on June 2, 1905, in said auditor's license. From a judgment of the circuit office was signed by a majority of the legal court dismissing the application, rendered on voters of Center township, Benton county, appeal from a decision of the board of com

Ind., and that it should be illegal for said missioners denying the application, the appli. board of commissioners to grant a license to cant appeals. Affirmed.

any person to retail intoxicating liquors in

quantities less than five gallons at a time, E. G. Hall, for appellant. Jno. F. Mc

with the privilege of allowing the said liqHugh and C. E. Thompson, for appellees.

uors to be drunk upon the premises where BLACK, J. At the February term, 1905, sold, for the period of two years from and of the board of commissioners of Benton after June 2, 1905. Wherefore your recounty the appellant applied for license to monstrators say that the cause for this resell intoxicating liquors in Center township monstrance has arisen since said cause was in that county. A remonstrance against the appealed to this court, and now file this granting of a license to him, purporting supplemental remonstrance against the grantto be the remonstrance of a majority of ing of a license to said George Sanasack, as legal voters of the township, was filed, and asked for in his petition therefor." The the board, finding that the remonstrance court overruled a motion of the appellant to was signed by a majority of such voters, strike out the supplemental remonstrance, and that it was filed on February 3, 1905, and overruled also a demurrer thereto, and, * Rehearing denied, 79 N. E. 457. Transferred to

thereupon, at the request of the parties, a Supreme Court, 80 N. E. 151. Rehearing denied.

township or city ward, it shall be unlawful the circuit court on appeal. Head v. Doehlethereafter for such board of commissioner's man, 148 Ind. 145, 149, 46 N. E. 585. "Apto grant license to any such applicant there- peals from the board of commissioners to for during the period of two years from the the circuit court stand for trial de novo in date of filing such remonstrance; or if such that court. Such appeals suspend all proremonstrance shall be against all applicants, ceedings had upon questions in issue before then it shall be unlawful for said commis- the commissioners, and they cannot either be sioners to grant a license to any applicant used or taken into consideration upon the therefor during a period of two years from trial in the circuit court.” Head v. Doehlethe date of the filing of such remonstrance man, 148 Ind. 145, 149, 46 N. E. 585. The against all applicants," etc. The amenda- cause is to be tried and determined in the tory statute makes provision for forms of circuit court as an original cause. Wilson remonstrances; the form provided for remon- V. Mathis, 145 Ind. 493, 44 N. E. 486. One strance against all applicants being such who has a license to sell intoxicating liquors as was used in writing the remonstrance of enjoys rights and privileges by virtue thereJune 2, · 1905, herein. The amendment in of, but not vested rights beyond the power effect continues in operation the provisions of the Legislature. The license does not already existing for a remonstrance to debar constitute a contract or a grant of property, a particular applicant for two years, such as office, or place. It is merely a permit acwas filed against the appellant in February, cepted with the burden of being subject to 1905. It introduces to availability another the imposition of future legislative control. and distinct remonstrance, the purpose and State v. Gerhardt, 145 Ind. 439, 41 N. effect of which is to produce from the time E. 469, 33 L. R. A. 313; Nelson v. State, of its filing a status of a particular locality, 17 Ind. 403, 46 N. E. 941.

N. E. 941. In granting making it an abstinent township or ward, a license a restrictive special tax is imfor the period of two years, during which posed for the public good and in the the granting by the commissioners of a exercise of the police power. The Legislicense to any applicant would be unlawful. lature, in furtherance of the public welfare,

The case presented in the manner which may change or even entirely revoke or annul we have shown at some length is one where- the license, notwithstanding a license fee in an application for license was duly made may have been paid by the applicant. No by a person fully qualified to be a licensee, element of a contract is involved in the and a remonstrance against the particular granting of the license. State ex rel., etc., , applicant was filed, purporting to be a re- v. Bonnell, 119 Ind. 491, 21 N. E. 1101; monstrance signed by a majority of the Moore v. City of Indianapolis, 120 Ind. 483, voters of the township, and the application 22 N. E. 424. The enactment of a statute was denied by the commissioners, from providing for the regulation of the retail whose determination the applicant appealed. dealing in intoxicating liquors is an exerWhile this appeal was pending in the circuit cise of the police power, of the further excourt a statute became in force, authorizing ercise of which the state cannot deprive ita remonstrance; the filing of which would self. Such a statute confers no vested rights render it unlawful for the board of coni- to property or to the privilege of carrying missioners thereafter for two years to grant on a business without the interference of the a license to any applicant; and some of the Legislature. It creates no remedy by way of persons who had remonstrated against the prescribed proceedings which may not be appellant, and who, therefore, with the oth- modified or abolished by future enactment. ers who joined them in remonstrating were The Legislature is intrusted with the duty parties to the appeal, filed what they de- of constantly exercising such power for the nominated a supplemental remonstrance, welfare of the public. See Shea v. City of showing thereby to the circuit court that Muncie, 148 Ind. 14, 46 N. E. 138. In List while the appeal had been pending a suffi- v. Padgett, 96 Ind. 126, where there was a cient remonstrance against all applicants in remonstrance for cause, it was held that a the same township had been filed as provided remonstrant who, pending the appeal to the by law. Thereupon, without determining circuit court, lost his qualification by ceaswhether or not the remonstrance against the ing to be a voter of the township was not appellant individually was sufficient, but entitled further to sustain the character of finding that, pending the appeal, the town- a remonstrant in the circuit court. The ship had become one in which no license rights and privileges conferred by a license could be granted, by reason of the filing to sell intoxicating liquors may be forfeited of the requisite remonstrance, the court dis- by the licensee by his voluntary relinquishmissed the application before it on appeal. ment of the necessary qualification of resiAll remonstrances, designated as such by the dence. State v. Dudley, 33 Ind. App. 640, statute, must be so filed as to come before 71 N. E. 975. Where a proper remonstrance, the board of commissioners, from whose required to be filed three days before the action, upon an application, an appeal may regular session of the board, is so on file, a be taken ;. and a remonstrance contemplated remonstrant may not, after the commenceby the statute cannot be filed originally in ment of such period of three days, withdraw