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ing to appellant's company joint notes, draw- disclosed by the evidence at the trial. Exact ing interest, and payable one-third in one justice between the parties being the purpose year, one-third in two years, and one-third of a court of equity, it will not do to say that in three years, and, if they failed to im- its power to grant relief can be circumscribed mediately join in the execution of such by any fast or technical rule. The rule exnotes, then the whole sụm, to wit, $3,000, pressed by the court in Real Estate Savings to become immediately due and payable in Inst. v. Collonious, 63 Mo. 290, 295, that such cash; that immediately after the signing of court "will not content itself in this regard this contract said subscribers, at a meeting by any halfway measures. It will not dein which all participated, formed a com- clare that a party has been defrauded of his pany and elected from their number a presi- rights and then dismiss him with a bland perdent, secretary, and treasurer; that there- mission to assert, at new cost and further deafter and about March 6, 1903, at said coun- lay, those rights in another forum” (citing ty of Manitowoc, "said defendants, relying authorities)—is quite applicable here and exupon said subscription contract of these

contract of these pressive of our views. The same principle as plaintiffs, and of the defendant John Gutt- announced by the Missouri court was ruled man, and of their said horse company, sold in the cases of Wade v. Bunn, 84 Ill. 117, and delivered to the plaintiffs herein and the Martin v. Martin, 44 Kan. 295, 24 Pac. 418, defendant John

John Guttman one imported Odd Fellows' S. Bank's Appeal, 123 Pa. 356, French Percheron stallion

for the 365, 16 Atl. 606, and McCalmont v. Lawrence, agreed sum of $3,000, and which said plain- 1 Blatchf. (U. S.) 232, Fed. Cas. No. 8,676. tiffs and the defendant John Guttman and See, also, 1 Pom. Eq. Jur. $ 237, note 3. their company agreed to pay in the manner We find nothing in the record to lead us to and at the time as hereinbefore stated, and the conclusion that appellees knew, when they which was a fair and reasonable price there

filed their suit in the Wisconsin court, that for”; that thereafter and upon demand the the notes had been transferred and were then three notes in suit were executed and de- in the hands of innocent purchasers. These livered, and in conformity with their said facts were developed by the answers. It is agreement and contract. The answer fur- said in Gates v. Paul, 117 Wis. 170, 191, 94 ther shows the transfer of said notes for value N. W. 62, that "if one sues in equity in good and in the due course of business by ap

faith and fails to establish his cause, but pellant's firm, before maturity, and prior

shows a state of facts entitling him to recovto the beginning of the action, to one Alton er at law, the court, having rightfully obP. Nave, and by Nave to the Citizens' Na

tained jurisdiction for a proper purpose, may tional Bank of Attica, Ind.; that appellant's retain the cause and grant just such relief firm obtained said notes from the makers as upon the facts the plaintiff appears enthereof in good faith and for value and in

titled to, whether at law or in equity.” TO the due course of business, and not by the same effect is the ruling in the case of fraud or misrepresentation; and, after deny.

Milkman v. Ordway, 106 Mass. 232, 253. See, ing all allegations in the complaint not ad

also, 1 Pom. Eq. Jur. $ 237, note 3. In our mitted or controverted, demands that the

opinion the better reasoning and the weight action be dismissed as to them, with costs. of authority is against appellant's contention The pleadings, of which we have endeav

and supports the ruling of the trial court. ored to give the substance, cover more than

The last reason in support of appellant's 40 typewritten pages of the record, and in

motion for a new trial is that the judgment our judgment exhibit facts showing that the

is excessive. After a careful examination Wisconsin court had jurisdiction of the per

of the record upon this question we are of son of appellant. Such jurisdiction,

if the the opinion that the ruling of the trial court issues and facts so warranted, authorized the

in this particular was right. court to enter personal judgment. The case

Finding no error in the record, the judg. was one based upon appellant's fraud, and

ment is affirmed. brought in a court of equity. Specific and general equitable relief was demanded.

(38 Ind. A. 565) Fraud is a subject of equity jurisdiction, and WESTERN UNION TELEGRAPH CO. V. upon the facts pleaded a court of equity

SEFRIT. (No. 5,819.) works out the rights of the parties before it. (Appellate Court of Indiana, Division No. 2. In the case at bar it will hardly be denied

Oct. 3, 1906.) that the Wisconsin court had the power to

1. TELEGRAPHS-REGULATIONS-STATUTES. determine the rights of the parties upon the

L.ws 1885, p. 151, c. 48, requires every

telegraph company to transmit messages imfacts pleaded; and, this being true, any re- partially, in good faith, and in the order of lief it might give by reason of such facts may

time in which they are received, and not to properly be said to be in issue, and therefore

discriminate in rates or service, and provides

a penalty for its violation. Held, that such secwithin the rule requiring jurisdiction of tha tion was not limited to willful wrongdoing, but subject-matter and of the person. The Wis- that the penalty was recoverable for the negliconsin court rendered a personal judgment

gent failure to comply with its terms. against appellant, and the presumption is

[Ed. Note.For cases in point, see vol. 45,

Cent. Dig. Telegraphs and Telephones, $$ 79, that it was according to the facts pleaded as 80.]

2. SAME-TRANSMISSION.

Laws 1885, p. 151, c. 48, requiring teiegraph 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 i point, see vol. 45, Cent. Dig. Telegraphs alu 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.

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 1883 (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 y. 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 conipanies 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 deliv.. ery by messenger, telegrams to those not re

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

siding within one mile of the telegraphic sta- law, if not the letter of it." The facts bring tion or within the city or town within which the case before us, within the spirit of the said station is located.

act of 1852. This message was not one to be The act of 1885 requires the delivery of all delivered to a stranger. It appears from the dispatches which the company undertakes to findings that since the message was delivered transmit. It is a rule of construction that a by the plaintiff to the defendant for delivery statute should be construed as a whole so as to the addressee, the defendant has received, most reasonably to accomplish its purpose. transmitted, and delivered other telegraph All consistent statutes which can stand to- inessages to other addressees at said town of gether, though enacted at different times, re- Petersburg, some of whom have resided withlating to the same subject, are called statutes in said town and within one mile of the telein pari materia and treated prospectively, | graph station situated thereat. The findings and construed together as though they consti- show that the defendant was not free from tuted one act. They are made to operate, as impartiality and was wholly lacking in dilifar as posible, consistently with the evident gence, and, under either statute, the comintent of the latest enactment. Lewis' Suth- pany is liable. erland Statutory Construction (20 Ed.) § 443, Judgment affirmed. and cases cited in foot notes. The intention of the Legislature manifest in both acts, was to secure the prompt and impartial delivery

(38 Ind. A. 587) of messages. The provision of the act of BUSH et al. v. BULLINGTON et al. (No. 1852 was to relieve the telegraph company

6,054.) from the possible task of an unaided and, (Appellate Court of Indiana, Division No. 2. perhaps, fruitless search for an addressee, a

Oct. 5, 1906.) stranger through a wide territory. It could RELIGIOUS SOCIETIES-ACTION BY TRUSTEESnot have been the purpose to excuse the tele

COMPLAINT-SUFFICIENCY.

A complaint which alleges that plaintiffs graph company from the discharge of its

are the elected, qualified, and acting trustees simple duty when it could perform it with of the "Christian Church, or Church of Christ," but slight if any inconvenience. The office at F., and as such are the owners and entitled of appellant was in the depot of said E. & I.

to the possession of real estate described, and

that defendants, as trustees of the “Christian railroad company where said E. & I. train

Church” at F., hold possession of such real esNo. 34 regularly stopped, and it stopped on tate without right, is not open to the objection the said day. Appellant's agent, Webb, and that, because of the use of the word "or," it

shows that plaintiffs are attempting to act as conductor Smith, of said train were well ac

trustees of two churches, but it avers that they quainted with each other and had been for a are trustees of a church of one name and that long time prior to August 26, 1904, and said defendants are trustees of a church of another

name. Webb knew at that time that said train was designated as E. & I. train No. 34 and that Appeal from Circuit Court, Washington said conductor and said addressee were ac- County; Thos. B. Buskirk, Judge. quainted with each other and upon the ar- Action by Charles P. Bush and others, rival of said train said appellant's agent con- trustees, against Charles Bullington and versed and transacted business with said con- others. From a judgment rendered on susductor, while it was stopping at said station, taining a demurrer to the complaint, plainbut wbolly failed to deliver said dispatch to tiffs appeal. Reversed and remanded. him. Appellant cites two cases. Western

Hottel, Cauble & Hottel and Elliott & Union, etc., Co. v. Tiinmons, 93 Ga. 345, 20 S.

Houston, for appellants. Mitchell & Mitchell E. 649; Moore v. Telegraph Co., 87 Ga. 613,

and Harvey Morris, for appellees. 13 S. E. 640. Both cases are based upon a statute impos

ROBY, J. "The plaintiffs complain of the ing a penalty upon telegraph companies for

defendants, and for cause of action say: failure to deliver messages to persons to That they are the duly elected, qualified, and whom they were addressed, who at the time

acting trustees of the Christian Church, or resided within one mile of the telegraph office Church of Christ, at the town of Fredericksor within the town or city within which

burg, Washington county, in the state of the office is. No other statute is referred Indiana, and as such they are the owners to. In each case the court held the non- and are entitled to the possession of the folresident could not recover. In the first- lowing described real estate: [Describing it.] named case the plaintiff was a transient

That defendants, as trustees of the Christian visitor. In the course of the opinion, the Church at the town of Fredericksburg,” etc., court say: If, after notifying the operator “now hold possession of said real estate that he, the plaintiff, would be in Knox- without right," etc. “Wherefore," etc. To ville and to send the messages to him this complaint a demurrer for want of facts there, he had given him a definite address, was sustained. Plaintiffs declined to plead such as a given street, a number or the name further, and appeal from the judgment of the owner of a particular house where the thereupon rendered. message should be delivered, perhaps he It is argued in support of the ruling that would have come within the spirit of the the complaint is bad, for the reason that the disjunctive "or" shows that the plantiffs are ROBINSON, C. J. At its meeting in 1903, attempting to act as trustees for two church- the state board of tax commissioners entered es, and that more than one church cannot an order concerning the assessments of the be included within one corporation. There real and personal property of each county is nothing on the face of the complaint, or in the state, which order, omitting such parts otherwise in the record, from which we are as relate to counties other than Fountain able to say that the appellants are not county, was as follows: "It is hereby ortrustees, as they aver themselves to be, of dered by the state board of tax commissionthe "Christian Church, or Church of Christ." ers of the state of Indiana, after a full and The appellants a ver themselves to be trustees fair consideration of the question of the of a church by one name, and the defendants

values of the real estate and improvements to be trustees of a church of another name. thereon within the state of Indiana, that said The complaint conforms to the requirements, real estate and the improvements thereon and the demurrer should have been over- be equalized by changing and modifying the ruled.

assessments as returned to this board by Judgment reversed, and cause remanded the several county boards of review, as fol. for further proceedings.

lows: Fountain County. 'Average value per

acre of lands as returned by the county (39 Ind. App. 224)

boards, $25.58. Average value per acre of BELL, Auditor, et al. V. MEEKER et al.

lands and improvements as returned by the (No. 5,496.)

county board, $28.41.' Action of the state (Appellate Court of Indiana, Division No. 1.

board of tax commissioners, in increasing or Out. 3, 1906.)

decreasing the assessments as returned by the 1. TAXATION- ASSESSMENT -INVALIDITY-IN.

county boards of review: Land as returned, JUNCTION-PAYMENT.

50 per cent. increase on improvements and Where suit is brought to enjoin that part 5 per cent. increase on lots and improvements of certain taxes only that were claimed to be

in Attica and, Covington.” Marked by star, , invalid, complainants were not required to pay the taxes not sought to be enjoined as a condi

referring to note 1, hereafter set out. Star tion precedent to their right to sue.

notes: "Notes.

"Notes. (1) Increase on improve[Ed. Note: ---For cases in point, see vol. 45, ments in towns and cities includes improveCent. Dig. Taxation, $ 1244.)

ments on lands not platted. (2) Increases or 2. SAME - EQUALIZATION — STATE BOARD OF decreases on lands do not apply to lands in REVIEW-CLASSIFICATION. Burns' Ann. St. 1901, § 8551, provides that

towns or cities in tracts of one acre or less. it shall be the duty of the state board of equal. (3) Increases or decreases on improvements ization to examine the abstracts of all real and on lands do not apply to improvements on personal property assessed for taxation and

unplatted lands in towns and cities. (4) Inequalize the assessments as thereafter provided. Section 8552 requires the county auditors to

creases or decreases on lands or improvements transmit to the State Auditor an abstract of do not apply to platted lots in unincorporated the assessment of property showing the number, towns." This order was duly certified to the value, and average value of each class of enumerated property, the value of each item of un

Auditor of State, and the increased valua. enumerated property, the total value of personal tion so ordered as to Fountain county duly property, the value of all land in each township placed upon the tax duplicate of that county. without improvements, the value of all improve

Appellees, owners of lands with improvements ments, and the value of such land with improvements, etc. Section 8553 declares that the

thereon outside of cities and towns, sue to enboard, in equalizing the valuation of proper- join the collection of so much of the taxes asty, shall consider separately railroad property, lands, town and city lots, and personal prop

sessed against them as is made up of this erty, etc. Held, that whatever increase or de

increased assessment made by the state crease the state board make in the assessments board of tax commissioners. A demurrer to returned by the local officers must be by per- appellees' complaint was overruled, and, apcentages upon the classes of property so specified, and that the board had no power to re

pellants declining to plead further, a decree classify “land and the improvements thereon” was entered in appellees' favor enjoining apand raise the valuation of improvements apart pellants, auditor and treasurer, from collectfrom the land.

ing, or attempting to collect, any tax based 3. SAME-POWER OF BOARD. The state board of tax commissioners is a

upon such increased assessment. statutory body with only such power with ref- The question presented is whether the state erence to the assessment of property for taxa- board of tax commissioners has authority, tion and the equalizing of assessments as is

in equalizing assessments, to act upon a expressly conferred by statute.

classification made by the board as indicated Appeal from Circuit Court, Fountain Coun

in the above order. As the suit is brought ty; Jos. M. Rabb, Judge.

to enjoin that part of the taxes only that Suit by Theodore M. Meeker and others

are claimed to be invalid, equity does not reagainst James T. Bell, as auditor, etc., and

quire that such taxes as are not sought to others. From a judgment for plaintiffs,

be enjoined should be paid before bringing defendants appeal. Affirmed.

suit The pleading proceeds upon the theory Chas. W. Miller, O. B. Ratclife, and 0. P. that the whole of the 50 per cent, increase on Lewis, for appellants. C. R. Milford, C. M. improvements on lands, made by the state McCabe, Lucas Nebeker, and Benj. Crane, board, is void. This assessment, so made by for appellees.

the board, is, as an entirety, claimed to be 78 N.D.-41

* Rehearing denied.

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void. In Yocum V. First Nat. Bank, 144 cept in case of railroad property. Section Ind. 272, 43 N. E. 231, a co inty board of re- 8553: “Said board, in equalizing the valuview increased the assessment of a bank's ation of property as listed and assessed in capital stock, and suit was brought to en- the different counties, shall consider the foljoin the collection of taxes on this increased lowing classes of property separately, viz.: assessment on the ground that the board's Railroad property, lands, town and city lots, order was void. In that case the court said: and personal property, and upon s'ich con“If the complaint were to enjoin the col- sideration determine such rates of addition lection of taxes, part of which were legal to, or deduction from the listed or assessed and part illegal, the complainant would be re- valuation of each of said classes of properquired to pay or tender payment of the ty in each county, or to or from the aggregate legal part, and this averment would be nec- assessed value of each of said classes in the essary before injunctive relief would be state, as may be deemed by the board to be granted; but that is not this case, nor is this equitable and just; such rates being in all case within the principle or rule which re- cases even, and not fractional, and such quires such averment to be made. This rates as finally determined by said board, action is to set aside and annul a par- shall not be combined.” It is provided by ticular order alleged to be void, whereby a section 8554 that “counties shall be equalspecific sum, to wit, $16,000, it is a verred, ized by adding to the aggregate value of the was illegally added to the assessed value of lands, town and city lots and personal propappellee's property.” See Board v. Griver, erty, in every county in which said board 115 Ind. 224, 17 N. E. 290; Hyland v. Brazil may believe the valuation to be too low, Block Coal Co., 128 Ind. 335, 26 N. E. 672. such rate per cent'ım as will raise the same Section 8551, Burns' Ann. St. 1901 (section to its proper proportionate value, and by de133, Act March 6, 1891, as amended in 1901), ducting from the aggregate assessed value provides: “It shall be the duty of the said thereof in every county in which said board board to examine the abstracts of all the may believe the valuation to be too high, real and personal property assessed for tax- such per centum as will reduce the same to ation in the several counties of this state its proper value, as defined in this act.” as returned to the Auditor of State, and to Section 8555 makes it the duty of the board equalize the assessments as hereinafter pro- to assess railroad property; section 8556 provided; but said board shall not reduce the vides for tabulating the results; 8557, for aggregate assessed valuation below the true certifying to the State Auditor, and he in cash value, as defined in this act." Section turn to the county auditors; 8558, the ex8552 provides that, for the purpose of prop- tension of the rates by the county auditors. erly equalizing the valuations of real and Section 8551 makes it the duty of the board personal property and railroad property, the to equalize the assessments of property for county auditors shall transmit to the State taxation as "hereinafter provided." Section Auditor an abstract of the assessment of 8553 expressly requires that, in equalizing property "showing the nimber, value and the valuation of property, the board "shall average value of each class or kind of consider the following classes of property enumerated property, as shown by the as- separately, viz.: Railroad property, lands, sessment, the value of each item of un- town and city lots and personal property, enumerated property, and total value of per- and upon such consideration" determine such sonal property, the value of all land in each rates of increase or decrease in each class as civil township without improvements, the should be made, and that such rates "shall value of all improvements thereon, and the not be combined." This classification is revalue of such land with improvements, and, tained in the subsequent section, and (section in like order, all city or town inlots, and 8356) “when said board shall have separately outlots, showing the value of such lots with- considered the several classes of property out improvements, the value of improve- as hereinbefore required” the results shall be ments, and the value of such lots with im- tabulated, "preserving, however, the prin provements,” also main and side tracks and ciple of separate rates for each class of propvalue of railroad property; "such abstract erty," and (section 8557) "shall certify to shall be arranged in such manner as to show the Auditor of State the rates finally deby civil townships the number of acres, termined by the board to be added or devalue and average value of improved lands, ducted from the listed or assessed valuation and in like manner the number of acres, value of each class of property in the several counand average value of unimproved lands, total ties." The above provisions are plain and number of acres, total value and average value explicit and clearly show that the Legislature per acre of all lands, the number and value and intended that whatever increase or decrease average value of improved town or city lots, the state board should make in the assessthe number, value and average value of un- ment as returned by the local officers, should improved town or city lots, the total number be made by percentages and upon classes of lots, total value and average value of all of property. Not only does the statute relots and the total value of all property real quire that each class shall be considered and personal”; that the value given in this separately, but also that the rates of increase abstract shall be the assessed valuation ex- or decrease on these several classes shall

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