The State, ex rel. Miller, v. The Board of Commissioners of Pike Co. et al.

terms and conditions set forth in the matter, and all the orders made by this board since the filing of said petition."

It was further shown by competent evidence that the auditor of Pike county placed the one per cent. tax, levied by the county board at its June session, 1879, upon the tax duplicate of that year for Washington township, and that such tax was paid by some of the taxpayers; that the unpaid portion of that levy was omitted by the auditor from the tax duplicates of succeeding years; that the county board failed at its June session, 1880, and had since failed and refused, to levy the additional one per cent. of the tax voted for; and that the railway of the railway company, in aid of which such tax was voted, was completed, and trains of cars were running thereon, through Washington township prior to December 1st, 1883, and prior to the commencement of this action.

Upon the evidence in the record, which we have briefly summarized, we are of opinion that the finding of the trial court ought to have been in favor of the appellant's relator. We learn from the briefs of counsel that the learned court which tried the cause below held that the evidence failed to show that the board of commissioners of Pike county was lawfully convened in special session on the 15th day of January, 1879, when the petition of the freeholders of Washington township was presented to and considered by such board. This view of the evidence, as it seems to us, is erroneous and can not be sustained. The evidence conclusively shows, (1) that the auditor of Pike county issued a summons for the members of the county board to meet in special session on the 15th day of January, 1879, and placed the same in the hands of the county sheriff to be served, and (2) that the members of such board did meet in special session on the day and at the place named in such summons. It is true that the return of this summons is imperfect and incomplete in this, that it does not give the date of service and lacks the signature of the sheriff. But, with the presumptions that must be indulged, in the absence of any showing to the contrary, that

The State, ex rel. Miller, v. The Board of Commissioners of Pike Co. et al.

public officers discharge their official duties according to law, it must be held, we think, that the sheriff duly served such. summons on each of the members of the county board, and that the special session of such board, on the day and at the place named in such summons, was duly and lawfully held under and pursuant to the notice thereby given.

Special sessions of the board of county commissioners are provided for, and the county auditor is expressly authorized to call such sessions, in sections 5737, 5738 and 5739, R. S. 1881, in force since October 10th, 1863. In Wilson v. Board, etc., 68 Ind. 507, after a careful consideration of these sections of the statute, the court said: "Whatever notice the auditor, or other acting county officer, may give of such special session, and however and whenever such notice may be served, it seems to us that these matters become and are unimportant and immaterial, if, pursuant to such notice so served, the board of commissioners actually meet at the time indicated therein, in special session." And to the same effect, substantially, are the following cases: Oliver v. Keightley, 24 Ind. 514; Board, etc., v. Brown, 28 Ind. 161; Jussen v. Board, etc., 95 Ind. 567.

In the case last cited, it appeared that the members of the county board were served with written notices of the special session by the auditor in person, and not "by summons issued to and served by the sheriff;" and it was held, and correctly so we think, that the board of county commissioners was lawfully convened in special session, under and pursuant to the notice so served.

The sections of the Revised Statutes of 1881, above cited, are the only sections of an act entitled "An act providing for calling special sessions of boards of county commissioners," approved March 7th, 1863. Although this act contained no repealing clause or section, yet, as its provisions cover the whole subject-matter of the act of February 2d, 1855, “authorizing county auditors to call a special term of the board VOL. 104.-9

The Western Union Telegraph Company v. McGuire.

of county commissioners," etc. (Acts 1855, p. 87), and were inconsistent therewith, and were evidently intended to supersede it and take its place, the older law is repealed by implication by the later statute. Leard v. Leard, 30 Ind. 171; Longlois v. Longlois, 48 Ind. 60; Wagoner v. State, 90 Ind.

504.

Our conclusion is that the finding of the court below was not sustained by sufficient evidence, and was contrary to law, and that, for these causes, the relator's motion for a new trial ought to have been sustained. This conclusion renders it unnecessary for us to consider or decide whether or not the court erred in the exclusion of offered evidence.

The judgment is reversed, with costs, and the cause is remanded, with instructions to sustain the motion for a new trial, and for further proceedings not inconsistent with this opinion.

Filed Dec. 8, 1885.

No. 11,923.

THE WESTERN UNION TELEGRAPH COMPANY v. McGUIRE.

TELEGRAPH COMPANY.-Rule Requiring Transient Person Sending Messages to Deposit Money for Answer.—A rule of a telegraph company, that transient persons sending messages which require answers must deposit an amount sufficient to pay for ten words, is reasonable and valid, and the company may, without liability, refuse to transmit a message until the deposit to pay for the answer is so made.

From the Clinton Circuit Court.

J. R. Coffroth, T. A. Stuart, B. K. Higinbotham, J. A. Stein and M. Bristow, for appellant.

A. E. Paige, S. O. Bayless and W. H. Russell, for appellee.

ELLIOTT, J.-The complaint seeks a recovery of the stat

The Western Union Telegraph Company v. McGuire.

utory penalty for a failure to transmit a telegraphic message. The answer of the appellant is substantially as follows: "The defendant says that it did fail and refuse to transmit the message set forth in the complaint, but defendant says that the plaintiff was a stranger in Frankfort and a transient person therein; that the said message was one that required an answer; that the defendant has, and had at the time, as one of its general rules and regulations of business, regularly adopted for the government of the operators and agents of said company, the following rule: "Transient persons sending messages which require answers must deposit an amount sufficient to pay for ten words. In such case the signal, "33" will be sent with the message, signifying that the answer is prepaid;' that the defendant's agent to whom said message was offered, informed the plaintiff of the existence of said rule and what said rule was, and that the amount required to be deposited was twenty-five cents; that thereupon the plaintiff refused to comply with said rule and make said deposit." To this answer a demurrer was sustained, and on this ruling arises the controlling question in the case.

One of the incidental and inherent powers of all corporations is the right to make by-laws for the regulation of their business. There is no conceivable reason why telegraph corporations should not possess this general power; nor is there any doubt under the authorities that this power resides in them. Western Union Tel. Co. v. Jones, 95 Ind. 228 (48 Am. R. 713), vide opinion, p. 231, and authorities cited; Western Union Tel. Co. v. Buchanan, 35 Ind. 429 (9 Am. R. 744); True v. International Tel. Co., 60 Maine, 9 (11 Am. R. 156); Scott & J. Law of Telegraphs, section 104.

Affirming, as principle and authority require us to do, that the telegraph company had power to make by-laws, the remaining question is whether the one under immediate mention is a reasonable one. It is established by the authorities that an unreasonable by-law is void. Western Union Tel. Co. v. Jones, supra; Western Union Tel. Co. v. Buchanan, supra ;

The Western Union Telegraph Company v. McGuire.

Western Union Tel. Co. v. Adams, 87 Ind. 598 (44 Am. R. 776); Western Union Tel. Co. v. Blanchard, 68 Ga. 299 (45 Am. R. 480, see authorities note, pages 491, 492).

It is for the courts to determine whether a by-law is or is not an unreasonable one, and this is the question which now faces us. 1 Dillon Munic. Corp. (3d ed.), section 327; Scott & J. Law of Telegraphs, section 104.

We are unable to perceive anything unreasonable in the by-law under examination. A person who sends another a message, and asks an answer, promises by fair and just implication to pay for transmitting the answer. It is fairly inferable that the sender who asks an answer to his message will not impose upon the person from whom he requests the answer the burden of paying the expense of its transmission. The telegraph company has a right to proceed upon this natural inference and to take reasonable measures for securing legal compensation for its services. It is not unnatural, unreasonable or oppressive for the telegraph company to take fair measures to secure payment for services rendered, and in requiring a transient person to deposit the amount legally chargeable for an ordinary message, it does no more than take reasonable measures for securing compensation for transmitting the asked and expected message.

We have found no case exactly in point, but we have found many analogous cases which, in principle, sustain the by-law before us. Western Union Tel. Co. v. Carew, 15 Mich. 525; Camp v. Western Union Tel. Co., 1 Met. Ky. 164; Vedder. v. Fellows, 20 N. Y. 126; Ellis v. Am. Tel. Co., 13 Allen, 226; McAndrew v. Electric Tel. Co., 33 Eng. L. & Eq. 180; Western Union Tel. Co. v. Blanchard, supra, see authorities cited note, 45 Am. R., page 489; Western Union Tel. Co. v. Jones, supra.

Judgment reversed, with instructions to overrule the demurrer to the answer and to proceed in accordance with this opinion.

Filed Sept. 15, 1885; petition for a rehearing overruled Dec. 9, 1885.