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Vol. IV.]

JONES v. JONES.

[No. 11.

to the jury, from which they might infer the fact of marriage of the appellee's mother with Andrew D. Jones, the court below was right in refusing the prayer. And, on careful consideration of the evidence, we think it was properly submitted to the jury. It is true, where there is no impediment to marriage, and the connection between the parties was illicit in its commencement, as it must have been in this case, according to the hypothesis of the prayer, it will be presumed to continue to be of the same character; and, in order to overcome that presumption, it will be necessary to adduce other evidence than that of the cohabitation of the parties to establish their marriage. Barnum v. Barnum, 42 Md. 251; Hubback on Ev. Suc. 360, 1 Bishop on Mar. & Div. sec. 506. But if evidence be adduced, such as shows a change in the conduct of the parties, or a change in the manner of treatment by their relations and friends, or other facts which indicate that they had changed their status before the world, and intended to make that relation lawful which was before unlawful, though such proof may not go to the direct proof of marriage, yet it may be sufficient upon which to found the presumption of marriage. And in this case, if, after the birth of the appellee, though born as a bastard, there was cohabitation of his father and mother, the latter assuming the name of the former, and the parties treated each other as man and wife, and treated the appellee as their child, and they were treated as and reputed to be man and wife by their friends and acquaintances, these are facts proper to be submitted to the jury, from which marriage may be inferred, notwithstanding the original illicit connection between the parties.

But while we think the first prayer was properly refused, we are of opinion that the second ought to have been granted.

As already mentioned, the jury have found that Andrew D. Jones left a widow surviving him, named Frances, formerly Frances Moore. The appellee's mother died, according to his own showing, in 1866, and there is not the slightest evidence to show, nor is it pretended, that the marriage of Andrew D. Jones to Frances Moore occurred after the death of Henny, the mother of the appellee.

How, or upon what theory, such a verdict was arrived at it is a little difficult to imagine. There was need of an explicit instruction from the court on this point of the case.

By the second prayer the court was asked to instruct the jury, that if it was found that Andrew D. Jones married Anne Smith in 1819, and thereafter lived and cohabited with her as his wife until her death, and that after her death said Andrew married Frances, and lived and cohabited with her as his wife until his death; then the alleged marriage of Andrew and Henny, the mother of the appellee, could not, after such marriage with Anne Smith, be established by cohabitation between Andrew and Henny, or by repute that they were married, unless such cohabitation or repute be found between the death of Anne and the marriage of Andrew and Frances; and if such cohabitation and repute be not found in such interval, then the appellant ought to prove an actual_marriage between Andrew and Henny before the marriage of Andrew and Anne.

There is nothing in this prayer to which the appellee could rightfully object. It is, of course, very clear that Andrew D. Jones could not have been the lawful husband of two wives living at the same time. If, as a

Vol. IV.]

JONES v. JONES.

[No. 11.

fact, it be found that he married Anne Smith in 1819, and lived and cohabited with her, then, in the absence of direct proof of previous marriage, the presumption is that he was a single man when he married her, and during his marriage with her, of course, he could contract no valid marriage with another woman. The reason for such presumption is very clearly stated in the case of Breakey v. Breakey, 2 N. C. Q. B. 349, 358, where the chief justice of that court, in delivering his opinion, said: "If Andrew Breakey, after cohabiting many years with this defendant, had, during his lifetime, married another woman in this country, he would, by that act, have destroyed the presumption of his marriage with the defendant, which would otherwise have arisen from the fact of cohabitation. He would have shown by it, what the law could not have presumed, that he was willing to incur the moral guilt of living with a woman as her husband when he was not her husband, for inevitably this must have been the case in regard to one or the other of the women, when both were, to his knowledge, living at the same time. The consequence then would have been, that, if charged with bigamy in contracting the second marriage, the presumptions would rather have been against the fact of the first marriage, for cohabitation would in such case have supplied none in its favor; and the inference would rather be, that he must have been aware there was no sufficient ground for the reputation of the first marriage, or he would not have incurred the guilt of felony, and the danger which attends it, by marrying again." The principle thus stated appears to have been followed in subsequent cases in the same court. 1 Bishop on Mar. & Div. sec. 444. Here, there is no pretence that there is any direct proof of marriage between Andrew D. Jones and Henny, the mother of the appellee; the only evidence relied on being that of habit and repute. The presumption of marriage from cohabitation may be rebutted by evidence of separation, without apparent rupture or sufficient cause. Jackson v. Claw, 18 John. 346; Senser v. Bower, 1 Penn. St. 450. And in case of conflicting presumptions, the one in favor of innocence shall prevail. 1 Penn. St. 452. This is fully exemplified by several cases stated by Bishop, in his work on Marriage and Divorce, volume 1, section 446. As, for instance, where in a legitimacy case, an actual marriage between the parents was proved, it was held, that this fact of marriage could not be overthrown by showing, simply on the strength of cohabitation and reputation, a preexisting marriage of one of the parties. And so, in a case occurring in the ecclesiastical court in England, where two women severally claimed administration of the effects of the deceased as being his widow, and the one who was last married to him offered to show that his marriage to the other woman was void by reason of his then having alive a former wife, who afterward, and before the last marriage, died; it was held, that evidence of cohabitation and repute was insufficient to establish the first marriage, notwithstanding both parties to it were dead, but such marriage should, as an actual fact, be proved. Taylor v. Taylor, 1 Lee, 571; 5 Eng. Ecc. Rep. 454.

If, then, it be found as a fact, according to the requirement of the appellants' second prayer, that Andrew D. Jones was married either to Anne Smith or Frances Moore during the life of Henny, the mother of the appellee (there being no evidence of any divorce), all mere presumption

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Vol. IV.]

JONES v. JONES.

[No. 11.

of previous marriage with the latter, founded simply upon habit and repute, is at once overthrown, and it then becomes incumbent upon the appellee to establish the alleged marriage of his mother to Andrew D. Jones as an actual fact, by more direct proof.

The appellants' third prayer, we think, was properly refused, for reasons stated in considering the first prayer. There was some evidence legally sufficient to be submitted to the jury. And we think the fourth prayer was also properly refused. The form and terms of this latter prayer were calculated to mislead the jury; and besides, it asserted that there was no evidence of marriage.

The seventh prayer was also properly refused. It embodies the proposition that without the consent of the master the marriage of the slave was actually void. There is no warrant for this in the law of this state. The statute, Act of 1777, ch. 12, prohibited ministers of the gospel from publishing the banns or celebrating matrimony between servants or a servant and a free person, under penalty, without the consent of the master. But the statute did not declare the marriage void, nor was that the operation of it. The minister subjected himself to a fine, but the marriage was valid.

The eighth prayer of the appellants was rightly rejected. It did not require the jury to find what was essential to be found, namely, that the Bible from which the entries were taken was the family Bible of Andrew D. Jones, and had been in his possession as such. That the book was found in the intestate's house, after his death, in the possession of his administratrix, is no evidence that the deceased ever saw it. On questions of marriage, births, deaths, &c., entries in a family Bible or Testament are admissible even without proof that they have been made by a relative, provided the book is produced from the proper custody. Proof of the handwriting or authorship of the entries is not required, when the book is shown to have been the family Bible or Testament, for then the entries, as evidence, derive their weight, not more from the fact that they were made by any particular person, than that, being in that place as a family registry, they are to be taken as assented to by those in whose custody the book has been kept. 1 Taylor on Ev. sec. 585; Hubbard v. Lees, L. R. 1 Ex. 255.

For the reasons stated, we reverse the rulings of the court below in the second and third exceptions, and in refusing to grant the second prayer of the appellants, but affirm its rulings in all other respects; and remand the cause for a new trial. Rulings reversed, and cause remanded.

Vol. IV.]

WESTERN UNION TELEGRAPH COMPANY v. MAYER.

SUPREME COURT COMMISSION OF OHIO.

(To appear in 28 Ohio St.)

TAXATION OF CORPORATION.

[No. 11.

TELEGRAPH COMPANY.
· CONSTITUTIONAL LAW.
OF COMMERCE.
FOREIGN CORPORATION, ETC.

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- LEGISLATIVE POWER.

WESTERN UNION TELEGRAPH COMPANY v. MAYER, Treasurer.

1. Where a corporation is assessed on its gross receipts, under the provisions of "an act for the assessment and taxation of express and telegraph companies" (S. & S. 769771), and pays such assessment to avoid the penalties and disabilities incurred by a refusal to pay, but under protest and after notifying the treasurer that an action would be brought to recover back; such payment is not voluntary, and an action may be maintained to recover back the amount so paid, if the tax is illegal.

2. A state tax on the gross receipts of such company for the year next preceding the assessment return is not a tax on commerce between the several states, within the meaning of article 1, section 8, of the Constitution of the United States, although they arose chiefly from messages pertaining to such commerce, or from messages originating or terminating outside of the state, or were earned on the lines of such companies outside of the state.

3. Corporations of other states are not citizens, entitled to all the privileges and immunities of citizens in the several states, within the meaning of article 4, section 2, of the Constitution of the United States, that provision being applicable to natural persons only.

4. Foreign corporations can exercise none of their franchises or powers within this state, except by comity or legislative consent. That consent may be upon such terms and conditions as the general assembly under its legislative power may impose.

5. The general grant of legislative power vested in the general assembly by article 2, section 1, of the Constitution, includes the power to collect revenue for public purposes, and the limitations on the exercise of this power are to be found in other provisions of that instrument, and in the Constitution of the United States.

6. The provisions of article 12 of the Constitution of Ohio are not grants of power to the legislature, but limitations and restrictions on the general powers conferred by article 2, section 1; and, among other things, section 2 of article 12 requires that all property subject to taxation shall be taxed by a uniform rule, and according to its true value in money.

7. The privilege that a foreign corporation enjoys by legislative consent of exercising its corporate powers, and of carrying on its business within the state, is not property within the meaning of article 12, section 2, of the state Constitution.

8. The provisions of "an act for the assessment and taxation of express and telegraph companies" (S. & S. 769-771), as amended, which requires a foreign telegraph company to pay a tax on its gross receipts for the year next preceding the return for assessment, at a rate equal to that on property, and prohibits any person from acting as agent, or transacting any business for such company that is in default of payment, are, in effect, a charge for the privilege of exercising its franchises and powers within the state, graduated according to the amount of receipts, not in conflict with any of the limitations on the power of taxation vested in the general assembly.

ERROR. Reserved in the district court of Hamilton County.

The case arises on a demurrer to the petition.

The action was brought under the act (2 S. & C. 1151) giving courts jurisdiction of actions to recover back taxes illegally assessed and paid, and to enjoin the collection of such taxes.

The petition sets forth: —

Vol. IV.]

WESTERN UNION TELEGRAPH COMPANY v. MAYER.

[No. 11.

1. The plaintiff in error is a corporation organized under the laws of New York, having its principal office and place of business in the city and State of New York, doing business also in the State of Ohio, receiving and transmitting telegraph messages between points lying within the State of Ohio, and also between points in the State of Ohio and points in other states and countries.

2. Prior to 1869, plaintiff accepted, in writing, the provisions of the Act of Congress of July 4, 1866. 14 U. S. Stat. at L. 221.

3. That plaintiff's "wires, poles, batteries, office furniture, franchises, and other property " in Ohio has been and is taxed like other property in said state.

4. That plaintiff's lines cross nearly all states of the Union, and occupy portions of British America, and that a large amount of the commercial transactions, business, and intercourse of the people, &c., is carried on by means of their wires.

5. Section 16 of Ohio tax law of April 5, 1859, subjects all of plaintiff's said property to taxation, and all of said personal property has ever since been listed for taxation, and taxes have been duly levied and paid in accordance with the same. (Same in effect as paragraph 3, above.)

6. Acts of May 1, 1862, and Amendatory Act of April 13, 1865 (O. L.), for taxing railroads and telegraph companies (S. & S. 769–771), make unfair and unlawful discrimination between telegraph companies organized and doing business in Ohio and those organized under the laws of another state and doing business in Ohio, and same rate as upon other property, although plaintiff says about two thirds of said gross receipts are absorbed by the current expenses of its said business, while no person residing in Ohio, and no corporation having its principal office therein, is so taxed.

7. "That said double taxation is, and the act last above named creates, an unlawful tax upon commerce; is not uniform in its operations on all telegraph companies in Ohio; is unequal, oppressive, and unjust in its operations, and wholly illegal, and contrary to the Constitution of the United States and the State of Ohio."

8. That under said acts plaintiff made a true return to the auditor of said county of the gross receipts of its business in said county for the year ending May, 1870 to wit, $172,297 of which $153,850.99 was for business" which originated or terminated at a point or points outside of the State of Ohio;" or, in other words, plaintiff says that said entire receipts were mostly for messages pertaining to commerce between the states, and other than messages sent from point to point within the State of Ohio, and a large portion of its said gross receipts in Ohio are earned on its own lines outside of said State of Ohio, and by its employees in other states of the Union than the State of Ohio."

9. That at the time of making said return to said auditor, “plaintiff duly protested, in writing, that the law levying said tax and requiring said return was unlawful and unconstitutional."

10. That said gross sum so returned to said auditor was placed upon the tax duplicate, and a tax levied thereon, amounting to the sum of $5,757.93.

11. That section [7] of said Act of 1862 made plaintiff and its employees, agents, &c., liable to heavy penalties, disabilities, and punishments

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