Appeal from Circuit Court, Carroll County; T. F. Palmer, Judge. Proceedings by Levi Summe before the board of commissioners of Carroll county to contest the election of William F. Browne, a public officer, and, from a judgment dismissing an appeal from the decision of the commissioners, petitioner appeals. Affirmed. John L. Hanna and Gus A. Hall, for appellant. John O. Farber, Wm. A. Roach, James O. Obear, Boyd & Julien, Edward E. Pruitt, and John H. Gould, for appellee. MONKS, J. This is a proceeding to contest the election of a public officer commenced by appellant before the board of commissioners of Carroll county. The cause was appealed by appellant to the court below, where, on motion of appellee, the appeal was dismissed, on the ground that there had been no such final decision or judgment as put an end to the case before said board of commissioners. The ruling of the court below is assigned for error. The statutes give the right of appeal in contested election cases from any decision of the board of commissioners. Sections 6318, 7859, Burns' Ann. St. 1901 (sections 4762, 5772, Rev. St. 1881; sections 4762, 5772, Horner's Ann. St. 1901). While the statutes provide that an appeal may be taken from any decision of the board, it has been uniformly held that the same must be final in its nature, and that it must put an end to the proceedings before that tribunal. Hanna v. Board, etc., 29 Ind. 170, 173; Freshour v. Logansport, etc., Co., 104 Ind. 463, 465, 467, 4 N. E. 157; Indiana, etc., Co. v. Wagner, 134 Ind. 698, 34 N. E. 535, and cases cited; Glassburn v. Deer, 143 Ind. 174, 179, 41 N. E. 376; Strebin v. Lavengood, 163 Ind. 478, 484, 485, 71 N. E. 494. In the hearing and determination of all questions, either of law or fact, arising in the progress of contested election cases, boards of commissioners are governed by the rules of law obtaining in the circuit courts. Section 6317, Burns' Ann. St. 1901 (section 4761, Rev. St. 1881; section 4761, Horner's Ann. St. 1901); Hadley v. Gutridge, 58 Ind. 302, 309-313; Tombaugh v. Grogg, 146 Ind. 99, 107, 44 N. E. 994. It is shown by the record that the board of commissioners, "after due consideration and careful examination, do now find the contestee William F. Brown is elected by a plurality of one vote * and the contestor Levi Summe does now pray an appeal to the circuit court." This was a mere finding of a fact in issue, and was in no sense a judgment, final order, or decision. Nor does it purport to be such. There is nothing in the record showing that the board intended it to be anything more than a finding of fact. The board of commissioners did not by such finding of fact put an end to the proceeding before them. It yet remained for that body to pronounce some final judgment, order, or decision under the rules of law obtaining in the circuit courts. Without waiting for the board to take such action, appellant appealed to the circuit court. This is not the case of an appeal from an informal final order, decision, or judgment, but an appeal before any such action was taken by the board. It follows that the court below did not err in sustaining appellee's motion to dismiss the appeal. Judgment affirmed. (165 Ind. 492) WESTERN UNION TELEGRAPH CO. v. STATE ex rel. HAMMOND ELEVATOR CO. et al. (No. 20,387.) (Supreme Court of Indiana. Nov. 28, 1905.) 1. REMOVAL OF CAUSES-SUITS AT LAW OR IN EQUITY-APPLICATION FOR MANDAMUS. An action for a writ of mandamus not in aid of a jurisdiction previously acquired is not a suit "of a civil nature at law or in equity," within Act Aug. 13, 1888, c. 866, § 2, 25 Stat. 434 [U. S. Comp. St. 1901, p. 509], authorizing the removal of any suit "of a civil nature at law or in equity" to the federal courts, on the ground of the diversity of citizenship of the parties. 2. COURTS-DECISIONS OF FEDERAL COURTS AS AUTHORITY IN STATE COURTS. A state court is bound by the decisions of the federal courts in interpreting federal statutes. [Ed. Note.-For cases in point, see vol. 13, Cent. Dig. Courts, §§ 330, 332.] 3. APPEAL ERROR WAIVED FAILURE URGE OBJECTION. - TO An assignment of error not argued on appeal is waived. 4. TELEGRAPHS QUOTATIONS OF BOARD OF TRADE-DISCRIMINATION. Where a telegraph company, in the exercise of its charter rights and in connection with its other business, has been engaged in buying continuous quotations of prices of products of a board of trade, and selling the same at a fixed price to such persons as desired them for such a length of time as to make such quotations necessary to the successful conduct of business in such products, the quotations and the system of supplying them have become impressed with a public interest, so that, so long as the company continues in such business, it must supply those desiring the quotations on equal terms. 5. MANDAMUS-ANSWER-SUFFICIENCY. An answer to an alternative writ of mandamus to compel a telegraph company to sell and deliver to relator the continuous market quotations of a board of trade, which sets out in full a contract between itself and the board of trade relative to the sale of the quotations, but which does not set out the tenor of the contract, nor declare its effect on the performance of the service required of the company by the alternative writ, is insufficient; proper practice requiring a pleader to state the facts growing out of the writing exhibited on which he relies as constituting a cause of action or defense. 6. PARTIES-DEFECTS-OBJECTIONS-PLEA IN ABATEMENT. Under Burns' Ann. St. 1901, § 368, declaring that a plea in abatement must precede an answer in bar, and the issue thereon must be tried first, a defect of parties not apparent on the face of the complaint must be set up by a plea in abatement, filed and tried before answers in bar are pleaded. [Ed. Note.-For cases in point, see vol. 37, Cent. Dig. Parties, §§ 115, 123, 145.] 7. MANDAMUS-ANSWER-SUFFICIENCY. An answer to an alternative writ of mandamus to compel a telegraph company to sell and deliver to relator the continuous market quotations of a board of trade, which alleged that relator was, at the institution of the suit, engaged in purloining such quotations and using them in conducting a bucket shop, and that he desired the quotations for the purpose of conducting a bucket shop, sufficiently alleged that the relator desired the quotations for gambling purposes, and was a good answer in bar. 8. GAMING-OPTION CONTRACTS-VALIDITY. Contracts for the purchase and sale of commodities not to be delivered, but only to be performed, by advancing and paying differences, are void at common law. [Ed. Note. For cases in point, see vol. 24, Cent. Dig. Gaming, § 25.] 9. EXCHANGES-REGULATIONS-REASONABLE QUOTATIONS. Where a board of trade and a telegraph company agreed that the company should not deliver the market quotations of the board, unless the applicant therefor agreed not to use them for the purpose of conducting a bucket shop, the court would not compel the company to deliver the quotations to an applicant who refused to agree not to use the quotations for an illegal purpose. Appeal from Superior Court, La Porte County; H. B. Tuthill, Judge. Application for a mandamus by the state, on the relation of the Hammond Elevator Company and another, against the Western Union Telegraph Company to compel respondent to sell and deliver to relators the continuous market quotations of the Chicago Board of Trade. From a judgment granting the application, respondent appeals. Reversed. Percy B. Eckhart and John B. Peterson, for appellant. Crumpacker & Moran, J. J. Kern, John A. Brown, and L. C. Whitman, for appellees. MONTGOMERY, J. This is an action of mandamus brought by appellees in the Lake superior court to compel appellant, as a public service corporation, to sell and deliver to the Hammond Elevator Company the continuous market quotations of the Chicago Board of Trade. An alternative writ of mandate was issued, and served upon appellant; and, upon being then brought into court, appellant filed its petition and bond for a removal of the cause to the Circuit Court of the United States, on the ground of diverse citizenship of the parties. This application was denied, and an exception to the ruling saved. Appellant thereupon filed a plea to the jurisdiction of the court, alleging specially the proceedings in the application for a removal of the cause to the federal court. Upon appellees' motion this plea was stricken out, and to this action appellant excepted. The venue of the cause was changed to the Porter superior court, and thence to the La Porte superior court. Appellant's demurrer to the amended complaint for want of facts and for a defect of parties was overruled, and a return or answer to the writ filed, consisting of six paragraphs. The first answer in general denial was subsequently withdrawn, and demurrers for want of facts to the affirmative answers were sustained, and exceptions to the rulings properly saved. Appellant declined to plead further, and judgment was thereupon entered against it in accordance with the prayer of the complaint. It is averred in the assignment of errors upon this appeal that the court below erred in denying appellant's application for a removal of the cause to the federal court, in striking out its plea to the jurisdiction of the state court, in overruling its demurrer to the amended complaint, and in sustaining appellees' demurrers to the 2d, 3d, 4th, 5th, and 6th paragraphs of answer. Appellees urge many technical objections to the record, and to appellant's brief, all of which we have duly considered, but in the main have found unsubstantial, and disregarded. The first question presented is one of jurisdiction. No objection was below, or is here, urged to the form or sufficiency of appellant's petition and bond for removal. Therefore, if this cause is removable to the federal court, upon the timely presentation of such application the jurisdiction of the state court was at once terminated. Appellees contend that original proceedings in mandamus are not within the jurisdiction of Circuit Courts of the United States, and are not removable to such courts; and it is admitted by counsel that it was upon this ground that the application for removal was denied in this case. The section of the federal statutes in relation to the jurisdiction of Circuit Courts of the United States confers upon them "original cognizance, concurrent with the courts of the several states, of all suits of a civil nature at common law or in equity," where the matter in dispute exceeds, exclusive of interest and costs, $2,000, and in which there is a controversy between citizens of different states. The section providing for the removal of a cause from a state court to the United States Circuit Court employs the same language, except that the suit is to be one "of a civil nature at law or in equity." Act Aug. 13, 1888, c. 866, §§ 1, 2, 25 Stat. 433, 434 [U. S. Comp. St. 1901, pp. 507-509]. It has been repeatedly held by the Supreme Court of the United States that an action for a writ of mandamus is not a suit of a civil nature at common law or in equity, within the meaning of the acts of Congress creating and defining the jurisdic- | state, and under the laws of the state of tion of Circuit Courts of the United States; and that such courts have no jurisdiction of such an action, unless it be in aid of a jurisdiction previously acquired. Mandamus was originated at a time when it was supposed that the king in person presided over the Court of King's Bench. It was a prerogative writ, issuing in the king's name from that court, and the proceeding did not partake of the nature of a suit between parties. The relief sought was granted, and effected by means of the writ, but it had none of the elements of a summons or judicial writ, requiring a party to appear and plead. The character of the proceeding and the nature of the writ have been materially changed by statute, and in most of the states of the Union a proceeding by mandamus is now considered a civil action. However, the Supreme Court of the United States, and some of the federal Circuit Courts have passed upon the question under consideration, and held that an action of mandamus is not a suit of a civil nature at law or in equity, and not removable, under the provisions of the federal statutes, from a state court into a circuit court of the United States. Rosenbaum v. Bauer, 120 U. S. 450, 7 Sup. Ct. 633, 30 L. Ed. 743; Mystic Milling Co. v. Chicago, M. & St. P. Ry. Co., 132 Fed. 289; Kelly v. Grand Circle Women of Woodcraft (C. C.) 129 Fed. 830; State of Indiana v. Lake Erie & Western Ry. Co. (C. C.) 85 Fed. 1. See, also, Black's Dillon on Removal of Causes, § 26; 18 Ency. Pl. & Pr. 171. This interpretation of the federal statutes is binding upon us, and in accordance therewith we hold that there was no error in denying appellant's application for a removal of this cause to the Circuit Court of the United States, or in striking out its plea to the jurisdiction of the state court. The amended complaint contained the following facts: That the relator the Hammond Elevator Company is a corporation organized under the laws of the state of Delaware, and the relator Frank C. Williams is secretary of said company and appears herein, not in his personal capacity, but as such secretary. That said elevator company is organized, among other things, for the purpose of buying and selling grain and provisions, stocks and bonds, and other commodities and securities, and is now, and has been since January 1, 1903, engaged at Hammond, Ind., in such business. That appellant, the Western Union Telegraph Company, is a corporation, and was organized February 18, 1859, under the laws of the state of New York, for the purpose of doing a general telegraph business in, between, and among the several states of the United States and elsewhere, and with, between, and among all of the inhabitants thereof. That it has power and authority, under its charter, and under the laws of said Indiana and of Illinois, to gather, buy, transmit, and sell news and information to all persons and corporations who may desire the same, and to the public generally throughout all the states. That it has been since its incorporation, and is now, doing, and will continue to do, that character of business in all of the states aforesaid, and with and between all of the inhabitants thereof and the public generally, for a stipulated compensation. That it has been at all times, and is by its articles of incorporation and by the laws of New York, of Illinois, and of Indiana, authorized to exercise the power of eminent domain in aid of its business, and is a quasi public corporation engaged in state and interstate business, public in its nature, and is now and for 40 years last past has operated a line of telegraph from the city of Chicago to and through the city of Hammond, and to a large number of other points throughout the world. That it maintains, and has maintained during all of said time, a public office in said city of Hammond, where it receives and delivers messages and news generally to those who may desire and are willing to pay for the same. That it does now and has during said time transmitted over the wires of its said system, and through its said office at Hammond, and to other points, to all who desired the same, the continuous quotations of the Chicago Board of Trade, and, without inconvenience or unusual or unnecessary expense, can furnish and deliver the same to the relator Hammond Elevator Company. That said Board of Trade is a corporation organized under special charter granted by the state of Illinois February 18, 1859, with its principal place of business in the city of Chicago, and organized, among other things, for the purpose of maintaining a commercial exchange and acquiring and disseminating commercial and economic information, and securing to its members the privileges of co-operation, and generally to carry on any business usually conducted by boards of trade or chambers of commerce; and that said board since its organization has been, and is now, conducting and maintaining an exchange at the city of Chicago, upon which exchange are bought and sold, and contracted to be bought and sold, all kinds of grain and hog products; and that the prices at which said commodities are so bought and sold, or contracted to be bought and sold, are collected by the said exchange and circulated in the manner hereinafter set forth, and, when so collected and circulated, are known as quotations, and, when circulated at intervals of less than 15 minutes, are known as continuous quotations. That said prices at which said commodities are so bought and sold, or contracted to be bought and sold, are noted by persons placed for that purpose on said exchange, and by them marked down, and then each and every fluctuation in the price of said commodities upon said exchange is immediately transmitted to the telegraph operator on the exchange floor, who at once transmits the same by telegram to said Western Union Telegraph Company in the city of Chicago, which buys the same from said board at a stipulated price per year for the purpose of disseminating and selling the same to any person or corporation throughout the United States that may desire the same and pay its fixed price therefor. That from its Chicago office by automatic apparatus they are repeated and sent out by said telegraph company over wires running to most of the large cities and other places of the United States, and that said continuous quotations are the property of said telegraph company, and are continuously received and conveyed by it at and from said city of Chicago at intervals, varying from a few seconds to five minutes with the fluctuations of said prices, to the persons, corporations, and exchanges in the several states of the United States within from 15 to 20 seconds after such prices or fluctuations of prices are made in the course of such purchases and sales on said exchange, and are then supplied by said telegraph company to persons, corporations, and exchanges, and to the public generally, upon the payment to it of a regulation charge for the same. That said telegraph company has been engaged in said business of obtaining, disseminating, and selling said quotations almost continually for over 10 years last past, and is now so engaged, and will continue to do the same for a long period in the future. That said business is a source of great income and profit to it, and constitutes a large and material part of its business, and has become of such general use and importance to the whole public that the market prices of said commodities are fixed thereby throughout the United States, and such business is a great convenience and benefit to the public generally which has an interest therein. That it is essential to said Hammond Elevator Company, in order to successfully carry on its said business, to receive said continuous quotations at said city of Hammond. That on November 12, 1903, at said city of Chicago said elevator company requested and demanded said continuous quotations from said telegraph company, and offered to pay for the same the regular and fixed charges therefor, and abide by, perform, and observe all proper rules and regulations which it might legally require. That said telegraph company then and there refused to furnish said elevator company with said quotations, and has ever since failed and refused to furnish said continuous quotations, and will continue so to do, unless mandated in this proceeding. That such refusal was not made on the ground of any failure of said elevator company to make tender of the regular charge, nor of its failure to comply with, perform, and observe any rules or regulations; but, on the contrary, such tender, performance, and observance of such rules and regulations were at all times, and are, wholly waived by said telegraph company. That said elevator company was, on said date, has been since, and is now, able and willing to pay the regular charge for said continuous quotations, and has been, is now, and ever will be, willing and able to comply, abide by, perform, and observe all rules and regulations of said telegraph company that it now has or hereafter may have a legal right to enforce or impose. That said regular charge above mentioned varies for different localities, being regular as to any given locality, but that said elevator company on November 12, 1903, did not know and does not know the specific regular charge of said telegraph company for said continuous quotations delivered at Hammond, Ind., and said elevator company herewith and hereby offers to pay for said continuous quotations the regular charge for the same at said city of Hammond, and to comply with any reasonable regulations of said telegraph company in that connection. Appellant demurred to this complaint upon the grounds: (1) That the Board of Trade was a necessary party respondent; and, (2) that the said complaint did not state facts sufficient to constitute a cause of action. The first ground of demurrer is waived by silence. Appellant's counsel insist that a telegraph company is not a common carrier with respect to the purchase and sale of news, and that the facts alleged in the complaint are insufficient to impose upon appellant a legal duty to supply appellee with said market quotations. It is a familiar principle of law that a common carrier, while in the enjoyment and exercise of its franchise, must serve the public, so far as it is able to do so, with substantial impartiality and without invidious discrimination. Central Union Telephone Co. v. Bradbury, 106 Ind. 1, 5 N. E. 721; Indiana, etc., Gas Co. v. State, 158 Ind. 516, 63 N. E. 220, 57 L. R. A. 761; Indiana Nat. Gas Co. v. State, 162 Ind. 690, 71 N. E. 133. The mere purchase and sale of news by a telegraph company may not constitute it a common carrier of such news so as to invest the general public with an equal right to the same, but, "where one is the owner of property which is devoted to a use in which the public has an interest, he in effect grants to the public an interest in such use, and must, to the extent of that interest, submit to be controlled by the public for the common good, as long as such use is maintained." Munn v. Illinois, 94 U. S. 113, 24 L. Ed. 77; Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 438, 56 N. E. 822, 48 L. R. A. 568, 75 Am. St. Rep. 184; Hockett v. State, 105 Ind. 250, 258, 5 N. E. 178, 55 ་ Am. Rep. 201. It appears from the averments of the complaint that, for a period of 10 years, appellant, in the exercise of its charter rights, and in conjunction with its other business, was engaged in buying the continuous quotations of prices of grain and hog products of the Board of Trade of Chicago, and selling the same at a fixed price to such persons as desired them, until such quotations became necessary to the safe and successful conduct of business in such products, and such quotations and this method and system of gathering and supplying the same became impressed with a public interest. Conceding these facts to be true, as the demurrer does, so long as appellant, a quasi public corporation, continues in such business, it must be subject to such regulations as may be found necessary to prevent injury to such public interest. The law will not permit a telegraph company, under such circumstances, to enjoy a monopoly, and to misuse its franchise by supplying such quotations to some and refusing them to others who are equally able and willing to pay for them and to be governed by all reasonable rules and regulations. The facts alleged in the complaint make it plain that it was the duty of appellant to supply appellee with the continuous quotations of the Board of Trade of Chicago without discrimination, and upon the same terms exacted of others. N. Y. & Chicago, etc., Exchange v..Chicago Board of Trade et al., 127 Ill. 153, 19 N. E. 855, 11 Am. St. Rep. 107, 2 L. R. A. 411; Inter-Ocean Pub. Co. v. Associated Press, 184 Ill. 450, 56 N. E. 822, 48 L. R. A. 574, 75 Am. St. Rep. 184; Friedman v. Gold & Stock Telegraph Co., 32 Hun, 4; Nebraska Telephone Co. v. State ex rel., 55 Neb. 627, 76 N. W. 171, 45 L. R. A. 113; State v. Citizens' Telephone Co., 61 S. C. 83, 39 S. E. 257, 55 L. R. A. 139, 85 Am. St. Rep. 870; Smith v. Gold & Stock Telegraph Co., 42 Hun, 454. No error was committed in overruling appellees' demurrer to the amended complaint. The second paragraph of answer or return of appellant alleged: That it is a New York corporation, with charter power to conduct a telegraph business throughout the United States, and therein to transmit all messages from time to time tendered to it, and to engage in the business of buying and selling news. That on June 5, 1867, it filed with the Postmaster General of the United States its written acceptance of the restrictions and obligations of the act of Congress approved July 24, 1866, entitled "An act to aid in the construction of telegraph lines, and to secure to the government the use of the same for postal, military and other purposes." That under said act of Congress it has constructed its lines on the various public railroads running across Indiana into Ohio and other states, and the telegraph wires so running through Indiana connect with and extend beyond the terminal lines of said railroads over other railroads and post roads, and that ap pellant has offices for its telegraph business at Washington, D. C., and in all the principal cities, towns and villages of the United States; that all said railroads are public highways and post roads; that prior to the commencement of this suit appellant was engaged in the business of sending and receiving messages over said lines for the public between its different offices within and without the state of Indiana, and from its offices in one state to its offices in another state, and in sending telegraphic communications between the several departments, officers, and agents of the government, the said official telegrams being transmitted at rates fixed by the Postmaster General annually; that the telegraph business so conducted is interstate, and is being conducted under said act of Congress; that an essential requisite in the telegraph business is the maintenance of the inviolability of the news transmitted, including the right of those sending said messages over such wires to designate the persons to whom the same should be delivered, and to confine the giving of such messages and information to the persons so designated, and that any order of court compelling respondent to furnish such news or messages to any person not so designated would be an obstruction and interference in the conduct of said interstate business, and would deter persons, otherwise availing themselves of the facilities of respondent, from committing such information to it for transmission, and that, if the court in this case should order respondent to furnish the said quotations in violation of the contract with the Board of Trade, under which respondent receives them, it would obstruct and interfere with the interstate commerce business, so far as it respects the transmission of said quotations, and, by compelling the respondent to break its said contract, respondent would be deprived of such quotations, and of the opportunity of transmitting them to sundry persons located throughout the different states of the Union, and that this would be contrary to the scope, purpose, and spirit of the act of Congress and the Constitution of the United States. A contract, dated April 15, 1901, between the Chicago Board of Trade, respondent, and the Postal Telegraph Cable Company, is then set out in full. This contract is lengthy, and need not be here set out in its entirety. It first provides that the Board of Trade shall collect the quotations upon its exchange, and transmit them over a telegraph wire to the offices of these two telegraph companies in Chicago with due promptness and dispatch; and "Second. The said parties of the second and third parts agree that they will not knowingly furnish or sell, directly or indirectly, said continuous quotations to any person, firm, or corporation conducting a bucket shop, or other similar place, where such quotations are used as a basis for bets or other illegal contracts based upon the fluctuations of the |