upon every other part. This is illustrated in a longer or shorter period, according to the the case of Felt v. Amidon, 43 Wis. 467, which | nature of the transaction. The principal point was an action by a father for the enticement of attention seems to be whether the circumby the defendants of his daughter from her stances surrounding the declarant were such home to a brothel in the city of Milwaukee. as to make it highly improbable that he was The Court held that the enticement consti- influenced by extraneous considerations in tuted the main act and admitted all declara- the statements which he made. Two cases tions made by the parties during the course of may be cited to illustrate this point. In the it. The enticement, however, terminated case of Com. v. McPike, 3 Cush, 184, the statewhen the girl was left by her seducer at the ments made by a wife on entering a room in brothel, and, consequently, statements made the same house in which the declarant resided, by the defendants subsequent to that time to the effect that she has been stabbed by her were not so connected with the main act as to husband, were held admissible, evidently for be part of the res gestae. the reason that it was most improbable that one who was mortally wounded and apparently on the threshold of eternity, should fabricate an account of how her injury was sustained. In the case of Bartlett v. Delpratt, 4 Mass. 701, the Court held that the declarations of the supposed grantor in a deed, made after the date thereof, to the effect that he never executed such deed, could not be given in evidence after the grautor's death, against a party claiming under such deed. Here it is plain that the alleged grantor had every opportunity and incentive to devise a statement for his own advantage. 4. Closely connected with the rule which we have just stated is the additional proposition that the declarations must not be mere narrative of a past transaction. This proposition follows from the one immediately preceding it, for the reason that it is impossible that statements could be part of a transaction and at the same time mere narrative of such act. This rule will be best understood, as, indeed, will all rules applicable to this subject by recurring to the reason for admitting declarations which are part of the res gestae. When statements become a mere narrative of a past transaction they no longer characterize or qualify it, but are the mere history of such act, given by one who is not under oath and not subject to cross examination, and, in short, are open to all the objections which we have enumerated above as militating against the admissibility of hearsay. This rule leads us to the last and most difficult of the rules which govern the res gestae, and as the rule we are now discussing is intimately connected with this last proposition and can be best considered in conjunction with it, we will proceed immediately with this discussion. It would be useless to multiply citations illustratve of this rule, as they would all tend only to show what we have stated above, that each case has its own distinctive res gestae, which is ascertainable only by the application to the particular case, of an educated discrimination, guided by the rule above laid down. stated, a few additional propositions may be By way of supplement to the rules already added, which may tend to clarify those which we have endeavored to explain. The first of these is that declaration made before the main act, if they fall within the rules already stated, act. This rule was applied at the trial of Prof. are admissible as well as those made after such Webster for the murder of Dr. Parkman, when way to the house of Prof. Webster. shortly beThe rule was carried to the utmost extreme at fore the murder, were admitted in evidence. the trial of Lord Algernon Sidney, when Judge Jeffries admitted a treatise composed by Lord Sidney, containing speculative republican doctrine, which appeared to have been written several years before the trial. This case, however, is now regarded as a judicial murder and would no longer be considered as authority. 5. The declarations sought to be introduced must have been made so soon after the act to which they relate, as to preclude all suspicions that they were considered or devised by the declarant for his advantage. It is the applica-statements made by Dr. Parkman on his tion of this rule that has been so fruitful a source of difficulty and apparent d.scord in decisions involving the res gestae doctrine. It is immediately obvious that there can be no inflexible rule fixing the precise time which may elapse between the main act and the declarations in question; no arbitrary canon declaring that all declarations made within such period shall in all cases be admitted and that no declaration made after such time shall in any case be admitted. Every case has its own peculiar distinctive res gestae, and the character of the main act in each case must determine what declarations are so intimately connected with it, as to be part of the res gestae in the particular case in question. A statement made after a considerable interval may be unquestionably competent in a bankruptcy case, while a statement made after onefourth such time may be as absolutely incompetent in a case of murder. As the Court observed in a case cited above (1), the main transaction is not necessarily confined to any particular period of time, but may extend over (7) Lund v. Tyngsborough, 9 Cush. 36. The declarations may be either oral or in writing. This we learn from the celebrated trial of Lord George Gordon for treason, in which not only the cries of the mob who accompanied him in his alleged treasonable undertaking, but also the inscriptions on the banners which they carried, were admitted in evidence as tending to characterize the act it self. Whether the declarations are favorable or otherwise to the declarant is immaterial, inasmuch as they are inadmissible if there has been an opportunity for fabrication. (m) (m) Hamilton v. State, 35 Ind. 250. Even the declaration of a bystander, if instinctive and spontaneous, may be admitted, subject to the rules which govern the statements of actual parties to the transaction. (n) In those states where legal infamy still excludes one from being a witness the statement of an infamous declarant is not on that account excluded, because the statement derives credit not from the veracity of the declarant but from his connection with the main act. THE NICHOLS LAW. ADAMS EXPRESS Co. v. POE, Auditor of State of Ohio, et al. [Circuit Court, S. D: Ohio, E. D. April 23, 1894) TAXATION - EXPRESS COMPANIES - NICHOLS LAW. The Nichols Law (Rev. St. Ohio, 2778a), which provides that the taxable value of the property of express companies doing business within the state shall be based upon the marAs mere opinions could not in any way char-ket value of their capital stock, violates Const. acterize the main act, it is evident that they Ohio, art. 12, 2, which requires that the taxare never a part of the res gestae. (0) ation of property shall be "by a uniform rule;" for the value of the capital stock includes good will and other intangible elements of value, which are not taxed as against individuals and other corporations. It remains to notice a single objection which has been raised to the res gestae rule. It has been urged that it is in violation of the constitutional provision that every one accused of crime shall meet his accusers face to face. This is a suit in equity to enjoin the The answer to this objection is that the declarations, as has been already said, are regarded assessment of a tax, brought by the as mere verbal acts, or, as has been judically Adams Express Company, a joint-stock observed, they are not the talk of the declar- company under the laws of New York, ant about the fact, but the fact talking through in the name of its president, Henry Santhe declarant. In the language of Mr. Warton, whenever recollection comes in the statements ford, against the state auditor, attorney cease to be part of the res gestae. general, and the state treasurer of Ohio. Thus we have endeavored to trace as clearly It now comes on for hearing on demurrer as possible within the limits allotted to us, the history, nature and limitations of the doctrine to the bill, and on motion by complainof the Law of Evidence known as the res aut for preliminary injunction. gestae. We cannot hope that our effort has been devoid of error or that we have been able, in the slightest degree, to add anything to what is already extant upon this subject. The difficulty of the question is equalled only by its importance. While some courts have gone to great length in their application of this doctrine, and others seem to have refused to carry it even to. a moderate extent, we think we are safe in saying that the majority of decisions on the subject have been in accordance with enlightened justice. It is true that there is great confusion in the authorities, but it is equally true that this confusion seems to result necessarily from the nature of the doctrine. To cast the greatest possible light upon a transaction in question and at the same time to avoid the baneful effects of fraud; to place before the court and jury all the details of an act and at the same time to exclude everything foreign to this act; in short to administer absolute justice and yet avoid transcending those established rules which are so essential to a perfect system of jurisprudence-all these require a judgment broad and yet conservative, philanthropic and yet jealous of unwarranted innovation. The doctrine of res gestae in the hands of the learned and conservative judge, is a shield for the protection of the innocent, but when wielded by the ignorant innovator, it is a sword for the destruction of established principles. It is only to be applied in so far as it may be placed in the scales of justice without disturbing their perfect balance. (n) 1 Wharton Ev. 259. (0) Lund v. Tynsborough, 9 Cush. 36 The main questions at issue are the same as those considered in the opinion just filed in the case of the Western Union Telegraph Company against the same defendants (61 Fed. 449). The bill avers that the complainant prepared and filed with the state auditor a statement, for the year 1893, of the amount of its capital and property, and of its gross receipts, in each county in the state of Ohio, and the aggregate value of its shares, together with a detailed report of all the property owned by the complainant in the state of Ohio, and where located, and the amount at which the same was assessed for taxation; that the defendants, as a board of appraisers, under the Nichols law fixed, in accordance with its requirements, the value of the property of the complainant within the state of Ohio at the sum of $460,033.08; that they threaten to certify the sum to the auditors of the various counties, as directed by the state, after apportioning the amount in the ratio of the gross receipts of complainant from its business in each of the counties to the entire gross receipts in the state; that, unless restrained by an order of this court, the defendants will make such certification to the auditors of 67 counties in which complainant does business, who will at once, as required by the said pretended laws, certify the same to the respective treasurers of each of said counties for collection, where it will be necessary, unless the board is restrained, to bring suits to enjoin the collection of the assessment; that the rate of taxation in Ohio for 1893 varies, according to the county, from 2 to 3 per cent., so that the aggregate assessment against the complainant upon the illegal and excessive appraisement, will amount to between $12,000 and $14,000, and in one or more counties will exceed $2.000; that the complainant owns no line of railroad in the each county in Ohio. An affidavit was filed by state of Ohio, and that it conducts its business the defendants, showing the method by which on many lines of railroad under contract with the appraisement of the defendants was owners of said railroads; that it owns no real reached. The affidavit shows that the board estate in said state, except such as is used in had the following facts before it: That the stabling its horses owned and used by it in the number of shares of the capital stock of the collection and distribution of goods, wares, Adams Express Company was 120,000. That and merchandise, and that its personal prop- the market value was from $140 to $150 per erty in said state consists entirely of office share, making the actual amount of 120,000 furniture and tools, horses, and wagons; that shares, at $140 per share, $16,800,000. That the total value of its personal property in the the total value of the personal property in state of Ohio does not exceed the sum of Ohio of the Adams Express Company, con$53,500; that it has paid all taxes due upon its sisting of office furniture, horses and wagons, real estate within the state to date; that the was $53,080.74, and that the gross receipts of Nichols law is unconstitutional and void, in the business done by the company within the this: that it does not provide a method for state of Ohio for the year ending the 1st of the taxation of property according to the true May, 1893, was $175,034. That the total value value in money, but is really an attempt to of the real estate of the Adams Express Comenforce against telegraph, telephone and ex-pany everywhere was $3,050,272.47, and the total press companies the payment of a tax for the value of the personal property of the company privilege of doing business in said state, by was $1,034,481.43. That in the statement of the placing a fictitious value upon their property, Adams Express Company were included renot authorized by the constitution of the state ports from 363 offices. That from 2 of these of Ohio; that the scheme of taxation set forth offices the personal property was returned of in said alleged law professing to tax property the value of less than one dollar; from 72 of in the state of Ohio does not do so, because it the offices the personal property in each directs the board of appraisers, in ascertaining instance was returned at a value of one dollar; the value of the property of express compa- from 51 offices the value of the personal propnies in Ohio, to be "guided by," and to "de-erty was returned of over one dollar and under termine the value" of the companies' property two dollars. That the express company made in said state, by the value of the companies' no returns of safes, pouches, or other personal capital stock; that the value of the companies' capital stock is fixed and determined by the nature, extent and uses of their property, not only in Ohio, but in many other states of the United States, and by the skill, diligence, fidelity and success with which their business is conducted in all these states; that complainant employs many thousands of men, who are constantly engaged as messengers in carrying goods, wares and merchandise from one part of the country to another, and otherwise, and that its income is largely the result of their efforts; that it owns valuable securities of other companies and holds valuable contracts and business arrangements with other corporations, and that all of these, with the good will which it has earned in the course of more than fifty years of service to the public in said business, o to make up the value of the shares of its capital; that the whole number of shares of said company is 120,000, and the market value of said shares, of the par value of $100, each, has ranged from $140 to $150, a price very much above the actual value of all the property of said company; that the law is a tax upon interstate commerce; that the method of taxation, if enforced against it, will destroy the business of complainant in Ohio, and compel it to abandon the said state, to its great and irreparable damage. The prayer of the bill is that a multiplicity of suits may be avoided, and the injury threatened, as above set forth, may be averted, by a preliminary injunction, and that, after hearing, a final injunction shall be granted against the defendants from certifying the appraisements under the Nichols law to the county auditors. Subsequently, an amendment to the bill was filed, averring the payment of taxes upon the real and personal property of the company in property used on the railroad lines in the state Ramsey, Maxwell & Ramsey, for Complainant. J. K. Richards, Atty. Gen., and Thos. McDougall, for Respondents. Ohio. It certainly is not real estate, because it gives an express company no interest in the land. It is intangible. The making of such a contract probably involves the personal character, so to speak, of the contracting express company, its good will, and its reputation for honesty and promptness, so that a contract made with it would be inalienable by it. It is certain that express companies have never been required to make returns of such contracts as personal property, and the definition of personal property, as given in section 2730, does not include it, for personal property, as there defined, is as follows: TAFT, Circuit Judge (after stating the will, skill and honesty of its employes,. facts as above). The validity of the and upon its franchises and other rights Nichols law has been considered in the and privileges not property. A very opinion-filed at the same time with this important source of the revenues of an -in the case of the Western Union Tele- express company is the business arrangegraph Company against the same defend- ments which it has with railroad comants (61 Fed. 449), and all the questions panies, by virtue of which, for a lump of law therein considered are raised by sum, fixed annual payments, or percentthe bill and demurrer and the motion for age of gross receipts, the railroad coman injunction in this case. The question pany permits a particular express comof jurisdiction by reason of the amount pany to use its cars for the transportation involved is also the same as in the West- of its merchandise, and to use its stations, ern Union Telegraph Company case. It depots, and employes for the transaction is admitted that the difference between of its local business. It is very doubtful, the aggregate amount of the certifica- in my mind, whether such a business tions to the county auditors about to be arrangement is personal property, to be made by the defendants against the returned for taxation under the laws of Adams Express Company under the Nichols law, and the amount which that company will pay under previous laws, if the Nichols law is finally held invalid, amounts to $241,918.34, which difference, at the rate of taxation prevailing in Ohio, makes a tax of from $6,000 to $7,000. It is true that in no single county does this tax difference equal or exceed $2,000; but, as already held in the Western Union Telegraph Company case, I do not think that the difference in any one county is the measure of the amount in controversy in this action. There is very little to add to what has been said in the telegraph opinion. The lack of uniformity in the mode of assessment under the Nichols law with that generally prevailing in Ohio in respect to property of individuals and other corporations, is more marked in the case of this complainant than it was in the case of the telegraph company. There is a suggestion in the report of the assessors that the express company did not return all its property, because its return did not include the safes and pouches which must be used in its business. But it is not claimed, and could not be, that the failure to return the safes is an explanation of the difference between $53,000, the amount returned by the company as the value of its property in Ohio, and the $460,000 at which the board has assessed the value of that property. The earning capacity of an express company, which largely determines the value of the shares of its capital stock, is even more dependent than the earning capacity of a telegraph company upon its good "The term 'personal property' shall be held to mean and include, first, every tangible thing mate or inanimate, other than money, and not being the subject of ownership, whether aniforming part of any parcel of real property, as hereinbefore defined; second, the capital stock, forming part of the capital stock, of every undivided profits, and all other means not company, whether incorporated or unincorporated, and every share, portion, or interest in such stock, profits, or means, by whatsoever. name the same may be designated, inclusive either legal or equitable, in and to every ship, of every share or portion, right, or interest, vessel, or boat, of whatsoever name or description, used or designed to be used either exclusively or partially in navigating any of the whether such ship, vessel, or boat shall be waters within or bordering on this state, within the jurisdiction of this state or elsewhere, and whether the same shall have been enrolled, registered, or licensed at any colin this state or not; third, the money loaned lector's office, or within any collection district on pledge or mortgage of real estate, although a deed or other instrument may have been given for the same, if between the parties the same is considered as security merely." Such contracts or business arrangements would seem to be more nearly included as "credits," which are defined by the same section as follows: "The term 'credits' shall be held to mean portioned to the state of Ohio for taxation, as property within the state, a fair share of the aggregate market value of the capital stock of the company. It is very true, as said by the supreme the excess of the sum of all legal claims and court in the case of Express Co. v. Seidemands, whether for money or other valuable bert, 142 U. S. 339, 12 Sup. Ct. 250, that thing, or for labor or service due or to become the tangible value of express companies due to the person liable to pay taxes thereon, is in a very small ratio to the protection including deposits in banks or with persons in or out of this state, other than such as are held. to be money, as herein before defined, when added together (estimating every such claim or demand at its true value in money), over and above the sum of legal bona fide debts owing by such person." And yet it is doubtful whether the right to enforce a contract unexecuted on either side could be said to be a legal demand for services due or to become due. However this may be, even if the value of such contracts were taxable as property in Ohio, there still would remain the good will of the business, the skill and experience of the officers, the discipline among, and honesty of, the employes of the company, which contribute so largely to the earnings, and yet are not taxable property in Ohio. which they receive from the government of the state, and therefore that it is entirely just that their burdens of taxation should not be proportioned to the visible tangible property upon which they may be taxed. But the difficulty in Ohio is that, under the constitution, the property of the corporations and individuals must be taxed by a uniform rule, and the inequalities of taxation produced by the fact that large earnings are made by corporations with small tangible property cannot be obviated by affixing to the property of such corporations a fictitious value, plainly not based on the true value of it in money. The tax must be imposed on something other than property. The same order of injunction will be made in this case which was directed in The suggestion is made that the re- the case of the telegraph company. As, turn of the company is an undervalua- under the old law, the taxes paid by the tion, because no personal property, or a express companies were proportioned to very small amount, is returned from any the gross receipts in each county, and offices of the company in Ohio. I, do the same method of distribution is prenot know why that should indicate un- scribed under the Nichols law, it is apdervaluation, because it plainly grows parent that the complainant will not out of the fact that, at the many small have to pay, under the old law, any more stations along the lines of the railroad taxes in any particular county than it upon which the express companies would have to pay under the Nichols operate, the express company uses the law. For this reason, the order of inoffice furniture and the office of the rail- junction will cover the certifications to road company, and has no property of all the counties, and will be made condiits own. There was in this case no tional on the complainant's paying the mileage basis for the distribution of the taxes on its gross receipts from business capital stock, and the board of appraisers done within the state of Ohio in each are unable satisfactorily to explain the county for the year ending May 1, 1893, basis upon which they affixed, to prop- with interest and penalty, and, when an erty returned by the express company as amendment to the bill showing such payworth $53,000, an additional value of ments has been filed, the demurrer will over $400,000, except that in reaching be overruled; otherwise, and unless this this additional value they considered the amendment is filed within 10 days, the gross receipts of the company in Ohio, bill will be dismissed. and the market value of its entire capital stock, and other evidence and informa tion. This only confirms the conclusion reached in the case of the telegraph com All for $3.00 a year:. THE OHIO LEGAL pany, that the board construed the Nich-NEWS and Ohio Decisions. Subscribe now. ols law to mean that there should be ap |