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taken to Clayton, which is about six miles from Danville; that about 12:10 a. m. of March 20, 1904, before transferring said party to the Vandalia train, he delivered to appellant's agent and operator at its office and place of business in Indianapolis a written message, as follows: "Union Station Indianapolis, Indiana. 3-20-1904. To McClelland's Bus Man, Danville, Indiana: Send wagons to Clayton for corpse. 43 goes over the Van. Chas. F. McClelland." It is further averred that appellee then and there notified appellant's agent that the busman to whom the message was addressed, with other persons, were then waiting at appellant's office and place of business at Danville, for orders and instructions as to what place they should meet appellee, and said funeral party; that he then and there paid appellant's agent 35 cents, upon receipt of which it undertook and agreed to promptly "transmit and deliver said message"; that appellee and said funeral party arrived at Clayton about 1 o'clock a. m. of said day; that they were compelled to wait and remain on the streets and platform, exposed to the inclement winter weather, for three hours, on account of the nonarrival of appellee's busman with the necessary conveyances, etc. The complaint concludes with the following averment: "And plaintiff says that notwithstanding the aforesaid contract and agreement to promptly transmit and deliver the above message, and notwithstanding it was also their legal duty to promptly and without delay deliver said message on account of its being an emergency message, as disclosed upon its face, that said defendant, acting with bad faith, negligence, partiality, and discrimination against this plaintiff, failed and neglected to transmit and deliver said message in the order of time in which the same was received, and willfully and purposely postponed the transmission and delivery of said message out of its order for about three hours' time, during all of which time the plaintiff's busman, to whom said message was addressed, and the friends and relatives awaiting the arrival of said funeral party, as aforesaid, were waiting in the defendant's office and place of business, in the town of Danville, Ind., and in the immediate presence, and holding conversations with the defendant's agent and operator. And that said defendant wrongfully, negligently, with partiality and discrimination, withheld said message for about three hours' time before delivering the same to the plaintiff's busman, as aforesaid." The prayer of the complaint is that appellee have judgment for $100, "the statutory penalty in such cases."
The action is based upon sections 5511 and 5512 of Burns' Annotated Statutes of 1901. The former section provides: "That every telegraph company with a line of wires wholly or partly in this state, and engaged in doing a general telegraph business, shall during the usual office hours, receive dispatches
individuals, and shall, upon
the usual terms, transmit the same with impartiality and in good faith, and in the order of time they are received, and shall in no manner discriminate in rates charged, or words or figures charged for, or manner or difference of service between any of its patrons, but shall serve individuals, corporations and other telegraph companies with impartiality." The latter section prescribes a penalty for violating the former.
Two objections are urged to the complaint: First, that it is insufficient because it failed to allege an omission to transmit the dispatch in the order of time in which it was received, with reference to the receipt and transmission of other dispatches handled by appellant at the same office, and, second, that the complaint proceeds upon inconsistent theories, because it pleads a "willful wrongdoing and negligence in the same paragraph." The first objection is not well grounded, for there is a positive averment that appellant acted with bad faith, negligence, partiality, and discrimination against appellee, and neglected to transmit and deliver the message "in the order of time in which the same was received and * * * postponed the transmission and delivery of said message out of its order," etc. As to the second objection, it is sufficient to say that the complaint does not proceed upon inconsistent theories, for the theory of the complaint is to recover a penalty for appellant's violation of the duties laid upon it by statute. Whether it violated that duty by reason of willfulness, discrimination, or negligence can make no difference. If the complaint is bad for duplicity, the way to remedy the defect is either by motion to strike out or to separate the causes of action into paragraphs. Rogers v. Smith, 17 Ind. 323, 79 Am. Dec. 483; Evans v. White, 53 Ind. 1; Hendry v. Hendry, 32 Ind. 349; Barnes v. Stevens, 62 Ind. 226. In Western Union Telegraph Company v. Ferguson, 157 Ind. 37, 44, 60 N. E. 679, it was held that a breach of statutory duty results from the failure, whether intentionally or otherwise, to transmit messages in the order of time in which they are received. A telegraph company is required by the statute to receive and transmit dispatches: (1) With impartiality and good faith; (2) in the order of time in which they are received; and (3) without discrimination or conditions of service. The failure to discharge any of these duties subjects the company to the penalty in favor of the aggrieved party. In Western Union Telegraph Co. v. Braxton (Ind. Sup.) 74 N. E. 985, it was held: "The suggestion that 'discrimination' and 'partiality,' as used in the statute, imply willfulness and positive wrongdoing on the part of the company, as grounds for the penalty. is without substance, because the failure to deliver a dispatch in the order of time in which it is received may occur from willfulness, as well as from carelessness, and the
consequences to the sender are precisely the same." The complaint charges a dereliction of a statutory duty, in the substantial language of the statute prescribing that duty, is not subject to the objections urged, and the demurrer to it was properly overruled.
By its motion for a new trial appellant presented several questions for the consideration of the trial court, but has waived its right to have many of them decided on appeal, by its failure to discuss them. The only questions presented by the motion and discussed by counsel are that the evidence is insufficient to support the verdict, and that the court erred in giving one instruction on its own motion, and in refusing to give one tendered by appellant. The point of contention on the part of appellant is that the evidence shows that the dispatch was delivered with reasonable promptness, and that the evidence fails to show that it was not delivered in the order of time in which it was received. The evidence shows that the message was delivered to appellant's agent and operator at the Union Station at Indianapolis, a few minutes before midnight; that appellee explained to him its urgency, and told him his "bus man" would be at the station at Danville to receive it. The "bus man" was at the station at Danville at 12 o'clock, and waited there until about 2 o'clock, when the message was delivered to him. It took an hour to drive to Clayton. The operator at the Union Station had to send the message to the main office in Indianapolis, from whence it had to be transmitted to Danville. It was stipulated by the parties, as a part of the evidence, that the message sent from Indianapolis to Danville arrived at its destination practically instantaneously after it was placed on the wire. Appellee testified that he paid appellant's agent at the Union Station 35 or 38 cents for sending the message, and that after the agent handed him the change he "pushed the telegram off to one side and leant back in his chair and picked up a paper or book or something." He also testified that he thought the agent was reading. The evidence further developed the fact that the regular rate for sending a message of 10 words or less from Indianapolis to Danville was 25 cents, and 2 cents for each additional word. The telegram consisted of 12 words, and hence the regular rate would have been 29 cents. Appellant's agent did not deny appellee's statement that he paid him 35 or 38 cents for sending the message. From these facts we must determine whether or not appellant is liable to appellee for the statutory penalty. This being a penal statute it must be construed strictly; but to do this, as was held in Western Telegraph Company v. Ferguson, supra, we are not required to "gaze fixedly upon a single phrase, and be oblivious to the act as a whole. * * * But in construing it strictly, regard for the clear letter of the statute." The message which appears in the record was one of emergency, and it clearly
appears so upon its face. Not only that, but appellant's receiving agent was advised by appellee of that fact. As to messages of this class it was said in Reese v. W. U. Tel. Co., 123 Ind. 295, 24 N. E. 163, 7 L. R. A. 583: "When the importance of a telegraph message appears on its face, the company will be held to have notice of the urgency of its delivery, and to have contracted with reference to it. It is the duty of the company under such circumstances to make prompt and reasonable effort to deliver the message to the person to whom it was addressed, and, failing to do so, the company will be guilty of negligence." The message was not delivered to the addressee for two hours after it was received by the company. It was urgent, and the appellant was advised of that fact. The evidence shows that the message would be received at Danville almost instantly from the time it was put upon the wires at Indianapolis, and that an excessive rate was charged and paid. This evidence sustains the verdict and judgment. The excessive charge, if noththing else, was a discrimination against appellee, under the statute. We think that the facts before us show an unreasonable delay in transmitting the dispatch. This being true, it was not incumbent upon appellee to show, as contended by counsel for appellant, that other messages for Danville were received at the appellant's Indianapolis office and forwarded before the one sent by him, for the law places that burden upon appellant. Julian v. Western Union Tel. Co., 98 Ind. 328.
The sixth instruction tendered by appellant and refused by the court was to the effect that, if the evidence failed to show that appellee's message was set aside, and other messages from Indianapolis to Danville, which were received after appellee's message were forwarded or delivered before it, then the verdict should be for the defendant. This instruction does not correctly state the law, and was properly refused. See the following authorities: Julian v. Western U. T. Co., 98 Ind. 327; Telegraph Co. v. Griswold, 37 Ohio St. 301, 41 Am. Rep. 500; Bartlett v. Western Union Tel. Co., 62 Me. 209, 16 Am. Rep. 437; Baldwin v. United States Tel. Co. 45 N. Y. 744, 6 Am. Rep. 165; Turner v. Hawkeye Tel. Co., 41 Iowa, 458, 20 Am. Rep. 605; Western Union Tel. Co. v. Meek, 49 Ind. 53.
The sixth instruction given by the court, to which appellant excepted, was as follows: "If a party to a suit has evidence peculiarly within their own knowledge and do not produce it, the presumption is that, if it were produced, it would be against them. This rule of law applies alike to civil as well as criminal cases." This instruction correctly states an abstract proposition of law, and the objections urged against it are not well founded.
SANASACK v. ADER et al. (No. 5,842.)* (Appellate Court of Indiana, Division No. 1. Oct. 2, 1906.)
1. INTOXICATING LIQUORS-LICENSES-REMONSTRANCES-STATUTES.
Under Burns' Ann. St. 1901, § 7283-i, as amended by Acts 1905, p. 7, c. 6, § 1, providing that where three days before a regular session of the board of commissioners of a county, a remonstrance signed by a majority of the legal voters of any township shall be filea against the granting of a license to any applicant, or against all applicants for the sale of intoxicating liquors, it shall be unlawful for the commissioners to grant a license to any and all applicants, etc., all remonstrances against the granting of a license for the sale of intoxicating liquors must be so filed as to come before the commissioners, from whose action on an application an appeal may be taken, and a remonstrance contemplated by the statute cannot be filed originally in the circuit court on appeal. 2. SAME.
A person applied for a liquor license while Burns' Ann. St. § 7283-i, was in force. Such section providing that where three days before a regular session of the board of commissioners a remonstrance signed by a majority of the legal voters of any township shall be filed against the granting of a license to any applicant, it shall be unlawful for the board to grant the license. The board found that a remonstrance against the application was signed by a majority of the legal voters of the township, and the application was denied. The applicant appealed, and, pending the appeal, Acts 1905, p. 7, c. 6, § 1, amending section 7283-i, so as to provide for the filing of remonstrances, not only against a particular applicant, but against any applicants, was enacted, and a new remonstrance against the granting of a license to all applicants was filed with the board, and it determined that it was signed by a majority of the voters of the township. A supplemental remonstrance was filed in the circuit court, setting up the filing of the second remonstrance, and the determination of the board thereon. Held, that the circuit court properly dismissed the application without finding whether or not the remonstrance against the applicant individually was sufficient, but finding that the second remonstrance was sufficient.
Appeal from Circuit Court, Benton County; Jos. M. Rabb, Judge.
Proceedings by George Sanasack against Frank Ader and others to procure a liquor license. From a judgment of the circuit court dismissing the application, rendered on appeal from a decision of the board of commissioners denying the application, the applicant appeals. Affirmed.
E. G. Hall, for appellant. Jno. F. Mc Hugh and C. E. Thompson, for appellees.
BLACK, J. At the February term, 1905, of the board of commissioners of Benton county the appellant applied for license to sell intoxicating liquors in Center township in that county. A remonstrance against the granting of a license to him, purporting to be the remonstrance of a majority of legal voters of the township, was filed, and the board, finding that the remonstrance was signed by a majority of such voters, and that it was filed on February 3, 1905, * Rehearing denied, 79 N. E. 457. Transferred to Supreme Court, 80 N. E. 151. Rehearing denied.
three days before the first day of that term of the board, dismissed the application, and adjudged that the appellant should not receive license for two years thereafter. He thereupon appealed from the decision of the board to the court below, at the June term, 1905, of which Frank Ader, William Smith, Fletcher Smith, John P. Carr, and A. S. Buchanan appeared and filed a "supplemental remonstrance," in which these four persons, designating themselves as legal voters of that township, who were such on February 3, 1905, being three days before the first day of the February term, 1905, of the commissioners' court, and who, with a majority of the legal voters of that township on that day, filed a remonstrance in the auditor's office of that county against the grant. ing of a license to the appellant to retail intoxicating liquors, etc., now remonstrated against the granting of a liquor license to the appellant to retail, etc., "for the reason that heretofore, on the 2d day of June, 1905, Curtis Ader and 430 other legal voters of Center township, Benton county, Ind., did file in the auditor's office of Benton county, Ind., a remonstrance against the granting of a license to any person to sell intoxicating liquors in said Center township, Benton county, Ind.; that said June 2, 1905, was three days before the regular June session of the board of commissioners of Benton county, Ind.; that said remonstrance so filed in said auditor's office of Benton county, on the said June 2, 1905, was signed by a majority of the legal voters of said Center township, Benton county, Ind.; that the board of commissioners of Benton county, Ind., did, on June 6, 1905, that being the time when the said remonstrance was set for hearing under the rules adopted for the business in said commissioners' court, proceed to the hearing of said remonstrance so filed; and that after having heard evidence thereon, and being fully advised in the premises, said board of commissioners did find and duly enter a judgment of record that said remonstrance so filed on June 2, 1905, in said auditor's office was signed by a majority of the legal voters of Center township, Benton county, Ind., and that it should be illegal for said board of commissioners to grant a license to any person to retail intoxicating liquors in quantities less than five gallons at a time, with the privilege of allowing the said liquors to be drunk upon the premises where sold, for the period of two years from and after June 2, 1905. Wherefore your remonstrators say that the cause for this remonstrance has arisen since said cause was appealed to this court, and now file this supplemental remonstrance against the granting of a license to said George Sanasack, as asked for in his petition therefor." The court overruled a motion of the appellant to strike out the supplemental remonstrance, and overruled also a demurrer thereto, and, thereupon, at the request of the parties, a
special finding was rendered; the court's conclusions of law being that the county commissioners had no right to issue a license to the appellant or any other applicant, and that the appellant was not entitled to a judg ment directing the commissioners to grant him a license.
It appears, in substance, from the special finding: That the appellant, being a white male person 21 years of age, and a citizen and resident of said township, and so continuing to be at the time of the finding, gave due notice by publication and made application for a license at the February term, 1905, of the board of county commissioners, and made due proof of the giving of the notice; he being a person of good moral character, and not in the habit of becoming intoxicated, and a proper person to be intrusted with a license. That three days before the meeting of the regular February term, 1905, of the board, the remonstrators herein filed a remonstrance against the granting of a license to the appellant, which, omitting the signatures, was set out in the finding. That, at said February term, the board refused to grant a license to the appellant, for the reason that they found that a majority of the voters of said township had signed a remonstrance against the granting of a license to him. That from said judgment the appellant duly appealed to the court below, "and this is the proceeding under said appeal." That a transcript of the proceeding was duly filed March 15, 1905, in the court below, where the proceeding had since been pending. That at the June term of the court below the remonstrators, Frank Ader and others, appeared, and filed a supplemental remonstrance, set out in the finding, and, in substance, stated above herein. It was further found that June 2, 1905, three days before the first day of the regular June term, 1905, of said board, there was filed in the auditor's office of said county a remonstrance against the granting of a license by said board, to sell intoxicating liquors at retail to any applicant in or for said township, which remonstrance was set out in the finding, except the signatures thereto; and it was found that it was signed by a majority of the voters of said township. In the body of this remonstrance was the following language: "We, the undersigned, legal voters in the township of Center," etc., "do hereby respectfully represent that we are opposed to the traffic in intoxicating liquors, and we hereby object to the granting of a license to any person for the sale of intoxicating liquors in said township." It was further stated, that said board, June 6, 1905, the day when said remonstrance was set for hearing, and after hearing the same, found and entered of record a judgment that said remonstrance was signed by "a majority of the legal voters of Benton county, Ind., in the matter of Christopher Anstell, on an ap
plication of said Anstell to sell intoxicating liquors in less quantity than five gallons at a time in said township, Benton county, Ind., and that from said judgment said Christopher Anstell has duly appealed to the said Benton circuit court, and his appeal is now pending in said court."
It will be observed that the supplemental remonstrance filed June 16, 1905, purported to be made by four persons who had signed the remonstrance of February, and who do not purport to have been signors of the remonstrance of June 2, 1905. Also, it will be observed that it is not stated in the special finding whether or not the remonstrance of February was signed by a majority of the voters of the township, but it is stated as a fact that the remonstrance of June 2d, was signed by a majority of such voters. When the appellant took the initiatory steps to procure a license, and, thereafter, until the legislative enactments of 1905 went into effect upon the proclamation of the Governor, April 15, 1905, there were available two methods of contesting the granting of a license, one by remonstrance of any voter of the township on account of immorality or other unfitness of the applicant, as provided in section 7278, Burns' Ann. St. 1901; and the other by remonstrance such as was filed in February, 1905, against the appellant, pursuant to section 7283-i, Burns' Ann. St. 1901, whereby it was provided, that "if, three days before any regular session of the board of commissioners of any county a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county shall be filed with the auditor of the county against the granting of a license to any appellant for the sale of spirituous, vinous, malt or other intoxicating liquors under the law of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits of said township or city ward, it shall be unlawful thereafter for such board of commissioners to grant such license to such applicant therefor during the period of two years from the date of filing of such remonstrance," etc. This statutory provision was amended by an act taking effect April 15, 1905 (Acts 1905, p. 7, c. 6, § 1; section 7281-i, 4 Burns' Ann. St. Supp. 1905), which provides that "if, three days before any regular session of the board of commissioners of any county, a remonstrance in writing, signed by a majority of the legal voters of any township or ward in any city situated in said county, shall be filed with the auditor of the county against the granting of a license to any applicant or against such granting to all applicants for the sale of spirituous, vinous, malt or other intoxicating liquors, under the law of the state of Indiana, with the privilege of allowing the same to be drunk on the premises where sold within the limits of said
township or city ward, it shall be unlawful thereafter for such board of commissioners to grant license to any such applicant therefor during the period of two years from the date of filing such remonstrance; or if such remonstrance shall be against all applicants, then it shall be unlawful for said commissioners to grant a license to any applicant therefor during a period of two years from the date of the filing of such remonstrance against all applicants," etc. The amendatory statute makes provision for forms of remonstrances; the form provided for remonstrance against all applicants being such as was used in writing the remonstrance of June 2, 1905, herein. The amendment in effect continues in operation the provisions already existing for a remonstrance to debar a particular applicant for two years, such as was filed against the appellant in February, 1905. It introduces to availability another and distinct remonstrance, the purpose and effect of which is to produce from the time of its filing a status of a particular locality, making it an abstinent township or ward, for the period of two years, during which the granting by the commissioners of a license to any applicant would be unlawful.
The case presented in the manner which we have shown at some length is one wherein an application for license was duly made by a person fully qualified to be a licensee, and a remonstrance against the particular applicant was filed, purporting to be a remonstrance signed by a majority of the voters of the township, and the application was denied by the commissioners, from whose determination the applicant appealed. While this appeal was pending in the circuit court a statute became in force, authorizing a remonstrance; the filing of which would render it unlawful for the board of commissioners thereafter for two years to grant a license to any applicant; and some of the persons who had remonstrated against the appellant, and who, therefore, with the others who joined them in remonstrating were parties to the appeal, filed what they denominated a supplemental remonstrance, showing thereby to the circuit court that while the appeal had been pending a sufficient remonstrance against all applicants in the same township had been filed as provided by law. Thereupon, without determining whether or not the remonstrance against the appellant individually was sufficient, but finding that, pending the appeal, the township had become one in which no license could be granted, by reason of the filing of the requisite remonstrance, the court dismissed the application before it on appeal. All remonstrances, designated as such by the statute, must be so filed as to come before the board of commissioners, from whose action, upon an application, an appeal may be taken; and a remonstrance contemplated by the statute cannot be filed originally in
the circuit court on appeal. Head v. Doehleman, 148 Ind. 145, 149, 46 N. E. 585. "Appeals from the board of commissioners to the circuit court stand for trial de novo in that court. Such appeals suspend all proceedings had upon questions in issue before the commissioners, and they cannot either be used or taken into consideration upon the trial in the circuit court." Head v. Doehleman, 148 Ind. 145, 149, 46 N. E. 585. The cause is to be tried and determined in the circuit court as an original cause. Wilson v. Mathis, 145 Ind. 493, 44 N. E. 486. One who has a license to sell intoxicating liquors enjoys rights and privileges by virtue thereof, but not vested rights beyond the power of the Legislature. The license does not constitute a contract or a grant of property, office, or place. It is merely a permit accepted with the burden of being subject to the imposition of future legislative control. State v. Gerhardt, 145 Ind. 439, 44 N. E. 469, 33 L. R. A. 313; Nelson v. State, 17 Ind. 403, 46 N. E. 941. In granting a license a restrictive special tax is imposed for the public good and in the exercise of the police power. The Legislature, in furtherance of the public welfare, may change or even entirely revoke or annul the license, notwithstanding a license fee may have been paid by the applicant. No element of a contract is involved in the granting of the license. State ex rel., etc., v. Bonnell, 119 Ind. 494, 21 N. E. 1101; Moore v. City of Indianapolis, 120 Ind. 483, 22 N. E. 424. The enactment of a statute providing for the regulation of the retail dealing in intoxicating liquors is an exercise of the police power, of the further exercise of which the state cannot deprive itself. Such a statute confers no vested rights to property or to the privilege of carrying on a business without the interference of the Legislature. It creates no remedy by way of prescribed proceedings which may not be modified or abolished by future enactment. The Legislature is intrusted with the duty of constantly exercising such power for the welfare of the public. See Shea v. City of Muncie, 148 Ind. 14, 46 N. E. 138. In List v. Padgett, 96 Ind. 126, where there was a remonstrance for cause, it was held that a remonstrant who, pending the appeal to the circuit court, lost his qualification by ceasing to be a voter of the township was not entitled further to sustain the character of a remonstrant in the circuit court. The rights and privileges conferred by a license to sell intoxicating liquors may be forfeited by the licensee by his voluntary relinquishment of the necessary qualification of residence. State v. Dudley, 33 Ind. App. 640, 71 N. E. 975. Where a proper remonstrance, required to be filed three days before the regular session of the board, is so on file, a remonstrant may not, after the commencement of such period of three days, withdraw