be expressed in its title." The court, on this point, observed: "We do not consider the act as obnoxious to that part of the clause of the Constitution just quoted, which says that 'no law shall embrace more than one subject.' The object of this law is the suppression of gambling, or that form of gambling where the bet or wager is made upon the speed or endurance or skill of animals or beasts, for, as was said in Ingles v. Straus, 91 Va., 209, 'if the subjects embraced by the act, but not specified in the title, have congruity or natural connection with the subject stated in the title, or are cognate or germane thereto, the requirement of the Constitution is satisfied.' *** The Constitution, moreover, is to be construed so as to uphold the law if practicable. All that is required by the constitutional provision is that the subjects embraced in the statute, but not specified in the title, shall be congruous, and have natural connection with, or be germane to, the subject expressed in the title. (Commonwealth v. Brown, 91 Va., 762.)”

Every provision of this ordinance looks to the prevention of the operation of pool rooms in the city of Louisville. The great purpose of the act is to suppress that form of gambling known as pool selling. To do this the general council has struck at the operation of the pool rooms as the most certain remedy. To prevent their operation five classes of persons, who are known to contribute thereto, are brought within the terms of the ordinance, viz.: First, the operator of the pool room; second, his servants or employes engaged in operating it; third, the owner or controlling agent of the building or lot who knowingly lets it, or knowingly suffers it to be used, for that purpose; fourth, the telegraph, telephone or messenger company, who, as carrier of messages, knowingly, and for the purpose of enabling the selling of pools, transmits or delivers messages to such operator, to be used at the pool room; and, fifth, the person who buys or has the possession of the ticket of any pool, issued or to be redeemed by any pool room operator in the city of Louisville. To reach any one of these classes tends to "prevent the operation of pcol rooms in the city of Louisville." To reach and restrain them all effectually accomplishes the object of the ordinance. The title of the ordinance fairly and comprehensively embraces every phrase of the subject treated of in its several sections, and is not repugnant to the statutes.

6th. For appellee Smith, manager of the Western Union Telegraph Co., is insisted that this ordinance is invalid because it is, so it is argued, an arbitrary and unauthorized interference with a legitimate business, to wit, the contract and duty of a common carrier of messages to deliver the messages according to its contract. Counsel insist that an enforcement of section 4 of the ordinance is invalid, because:

"1st. The prohibition is not limited to messages to be used in the business or operation of the pool room; they may be entirely foreign to such business and operation, and still be a violation of the ordinance.

"2d. The message may be addressed to and delivered at a place separate from and having no connection with the pool room.

"3d. The defendant may be guilty under the ordinance, although he may not know the contents of the message; he may not know that it is to be used at a pool room; he may not even know that the addressee is the owner or proprietor, or agent, or employe of a pool room."

No such construction of the ordinance is contended for by the city, nor do

we believe that it is fairly susceptible of it. The messages which the telegraph and telephone companies and their employes are prohibited, from delivering are those messages only that are communications "to any owner, proprietor, agent or employe of any pool room maintained, kept, operated or conducted in the city of Louisville for any of the purposes defined in section 1 of this ordinance, any message, commuication or information to be used at such a pool room as is defined in section 1 of this ordinance, concerning any horse race or races in or out of the city of Louisville."

The message must contain matter which on its face shows it is to be used in the operation of a pool room in Louisville, by furnishing information concerning horse races that would enable the operator of the pool room to make or sell pools, or chances based upon such information; or the knowledge of such purpose must be otherwise established; and it must be shown that the message was delivered to such pool room operator or his agent, with knowledge of the purpose that it is to be used in making bets or selling pools on the information contained in the message; the telegraph company or its agents handling the message must be shown to have guilty knowledge that it is to be so used. Messages not concerning horse racing, and to further the pool selling business, are not affected by the ordinance.

It is not argued that the ordinance is invalid as to this appellee on any other ground than above named. The case of the Commonwealth v. Western Union Telegraph Co., 23 Ky. Law Rep., 1633, is relied on by appellee as sustaining this position. The question involved and decided in that case was whether a telegraph company that delivers such mesasges to an operator of a pool room was guilty of the common law offense of maintaining a nuisance. The court held, first, "at common law a gaming house is a nuisance. It is detrimental to the public, because it promotes cheating and other corrupt practices; it encourages idleness and excites the desire to obtain money in an improper way. Persons who are in the occupation and control of such houses are guilty of maintaining a common nuisance;" and, second, that a telegraph company who merely furnished messages to the proprietors of the gambling house were not “in control" or "occupation" of such house; that it was never at common law a nuisance to furnish such messages. Beyond that the court was not called upon to, and did not, decide. Certain ex pressions used in the opinion by way of illustration or argument seem to have misled counsel. For example, the court cited section 1346, Kentucky Statutes, which punishes telegraph companies by fine for corruptly, or willfully, or for any other improper motive, failing to deliver a message. The whole section is as follows: "If any agent, officer or manager of a telegraph or telephone line in this State, or other person, shall knowingly transmit, on or through the same, any false communication or intelligence with intention to injure any one, or to speculate on any article or merchandise, commerce or trade, or with intent that another may do so; or if any agent, officer or manager of a telegraph or telephone line, from corrupt or improper motives, or willful negligence, shall withhold the transmission or delivery of messages or intelligence, for which the customary charges have been paid or tendered, he shall be fined not less than ten nor more than $500,"

This section aimed at three things: First, to punish a telegraph operator,

or any one else, who knowingly sent false messages with intention to injure another; second, to punish the operator or other person who transmits such telegraphic or telephone message for the purposes of speculation in articles of merchandise and commerce; and, third, to punish the operators who corruptly or by willful negligence failed to deliver a message. Judge Paynter in the opinion in Commonwealth v. Western Union Tel. Co., supra, commenting upon the last mentioned feature of the statute, observed: "If a person desires to transmit a message over a telegraph line, if it is couched in decent language, it is the duty of the company to receive and transmit it upon the tender or payment of the customary charges for such services." Counsel for appellee construe this language to mean that a telegraph com pany is bound, and, therefore, of course may voluntarily, accept and transmit any message couched in decent language, upon payment of customary charges. The same section expressly prohibits the transmission of two classes of messages, without regard to the absence or presence of terms that might shock the modesty, viz., false messages intended to injure another, and those for speculation upon the state of the markets. Of course the opinion did not mean to hold that the last annulled the first two provisions of the statute. Nor did the court intend to subscribe to the doctrine that any one, whether a common carrier or not, could be compelled to do an unlawful act, or to become a party to an immoral one. The court did not intend to overrule the case of Smith v. Western Union Tel. Co., 84 Ky., 665, nor to depart from the principles therein announced. It was held in that case that a telegraph company would not be compelled by injunction to furnish service to one who purposed using it in gambling transactions with his customers. In the case of Commonwealth v. W. U. T. Co., supra, the court merely announced that if the telegraph company did furnish such service it was not an indictable offense at the common law. Since the decision in the Smith case, supra, section 1346, Kentucky Statutes has made it an indictable offense for a telegraph company to furnish the character of information therein mentioned, viz., bucket-shop quotations. It would be neither courteous nor fair to the legislative branch of the State government to impute to it, in construing one of its statutes, a purpose to encourage crime and foster immorality; to say that it had in mind the compulsion of facts by its citi. zens which had but the sole object of perpetrating other acts which in every enlightened jurisdiction are deemed vicious and degrading. To hold that the statute being considered compelled the transmission of messages by the telegraph company known to be designed for purposes of gambling within this Commonwealth, would be to convict the legislature of favoring the vice of gambling. On the contrary, the true rule of interpretation is, the purpose of the legislature in passing such act will be presumed to be in harmony with the general public policy, evidenced by innumerable statutes against gambling in almost every conceivable form. A telegraph company, at com. mon law, might become liable for the transmission of a libel, where the matter conveyed information of its nature. (Whitfield v. S. E. R. Co., 1 El. B. & El., 115; Peterson v. W. U. T. Co., 72 Minn., 41; Manson v. Lathrop, 96 Wis., 386; Archambault v. Great Northwestern Tel. Co., 4 Montreal, Q. B., 122.) So a common carrier of messages is bound to transmit all messages upon payment of customary charges, when couched in decent terms,

and which it is not prohibited by law from carrying; or which, if delivered, would not subject it to indictment or to an action for damages, or which are not intended for treasonable, unlawful or immoral purposes, known to the carrier. The words "if couched in decent language," used in Commonwealth v. W. U. T. Co, supra, are not in the statute, yet they are properly read into it, as should be the terms above used, for the policy of the law will not discriminate merely in the exclusion of words which might offend the sensibilities, yet allow matter obviously vicious and detrimental to society. (State of Alabama v. Stripling, 36 L. K. A., 81; Gray on Telegraphs, section 15; Melchert v. American Union Tel. Co., 11 Fed. Rep., 193; Bryant v. W. U. Tel. Co., 17 Fed. Rep., 825; Cochran v. W. U. Tel. Co., 83 Ga., 25.) As said in the Smith case, supra, of course a telegraph company, in assuming to refuse to send a message because it is illegal or immoral, acts upon its peril."

Or, as was observed in Gray v. Western Union Tel. Co., 87 Ga., 350: "When a dispatch is ambiguous, the law would give the benefit of the ambiguity to the company dealing with it, either civilly or criminally, for transmitting the dispatch, and hence it would be the duty of the company, in deciding whether to transmit or not, to give the benefit of the doubt to the sender." But, however, the matter may be regarded in other respects, it is left in this State, so far as the State policy is concerned, to the discretion of the telegraph company whether it will receive and transmit messages concerning gambling transactions, other than gambling in "futures." It was competent then for the general council of Louisville, in the exercise of that police power delegated to it by the State, to punish the willful transmission of messages furnished to known gambling establishments for the purpose of enabling them and their customers to make bets or lay wagers on horse races. The telegraph company, whether or not it has a conscience, has a duty. It is claimed that this duty is only to serve the public. Not so. Its first duty is to obey the laws, just like other people. The public can not demand a service which in and of itself involves a violation of the law. The ordinance is a clear exercise of police power, and not an improper one.

7th. The final contention of appellees is that the warrants in question are too indefinite, and fail to state any charge against any of appellees. By the warrants the defendants were summoned to show cause why they should not be fined "for violating ordinance to prevent the operation of pool rooms in the city of Louisville." It is complained that no acts are charged. There may be as many as five different offenses under this ordinance. The warrants in these cases do not describe any one of the offenses.

In the recent case of Commonwealth v. Leak, 25 Ky. Law Rep., 761, it was held: The same technical strictness is not required in a proceeding by warrant as by indictment, and ordinarily a warrant in the form prescribed by the Code sufficiently describes the offense, but if made to appear to the satisfaction of the court that a defendant can not intelligently make defense, it should be made more specific."

In Commonwealth v. Robert VanMeter, MS. opinion by Judge Cofer, decided in 1876, this court held that a warrant issued in a misdemeanor case not requiring an inictment could be amended, when it was not sufficiently vol. 25-64

specific, and that the amendment could be made in the circuit court after the appeal there, inasmuch as it would not have changed the prosecution.

In these cases the warrants can be amended on their return to the circuit court, if demanded by appellees, so as to apprise them as to which sections of the ordinance they are charged with having violated. But it was error to have dismissed the warrants.

The judgments are reversed and causes remanded to the circuit court for trial under proceedings not inconsistent herewith.

Whole court sitting.

GAMEWELL FIRE ALARM TELEGRAPH CO. v. FIRE AND POLICE TELEGRAPH CO., &c.

(Filed November 18, 1908.)

1. Corporation-Double liability of stockholders-A corporation organized for the purpose of “conducting a general electric business" and "purchasing or otherwise acquiring stock, bonds or other obligations of other corporations, and selling, transferring and disposing of the same' does not come within the exception of section 547 of the Kentucky Statutes, which excludes from the double liability therein imposed on stockholders corporations organized for the purpose of "constructing or operating water, gas or electric plants."

2. Same-Parties to action-The liability of the stockholders of a corpora tion under the double liability provision of section 547 of the Kentucky Statutes is several, and it is not improper for the court to adjudge the liability of one stockholder without first bringing the others before the court.

3. Same-The fact that the sole stockholder of a corporation was a corpora tion does not relieve the latter from double liability to the creditors of the former.

4. Counterclaim-Where a nonresident creditor corporation seeks to have an insolvent resident corporation placed in the hands of a receiver and its assets collected and distributed, a creditor of the insolvent corporation may by counterclaim in the suit enforce the liability of the nonresident as a stockholder therein and force it to pay its statutory liability before it is allowed to receive its pro rata of the assets.

5. One creditor to defend for all-Where the trial court entered an order in an action for a receivership and the settlement of the affairs of an insolvent corporation permitting one of the numerous creditors to sue and defend for all and enjoined the creditors from suing or prosecuting their claims except in that suit, a judgment in favor of all the creditors who had filed their claims with the master commissioner was proper, although they had not filed in the action separate pleadings setting up their claims.

6. Practice-The action of the trial court in charging an attorney's fee adjudged in favor of attorneys who represented the creditors against those creditors only who were not represented by special counsel can not be reviewed at the instance of a creditor who had no part of it to pay, those interested not having appealed.

Dodd & Dodd for appellant.

Randolph H. Blain and McDermott & Ray for appellees.

Appeal from Jefferson Circuit Court, Chancery Branch, Second Division. Opinion of the court by Judge Nunn.