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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 ace 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.

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(To appear in 28 Ohio St.)




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. 769– 771), 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 immuni

ties 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 pro

visions of that instrument, and in the Constitution of the United States. 6. The provisions of article 12 of the Constitution 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 à 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 :

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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 85,757.93.

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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if they should refuse or omit to pay such taxes for twenty days after the same should become due, and that plaintiff, on or about the 25th day of January, 1871, and after the same became due, to escape trouble, &c., and to save its agents and employees from prosecution, &c., paid to the said treasurer of Hamilton County the full amount of said taxes and penalty thereon, but that it paid said sum under protest, and with a distinct understanding with said treasurer that it would sue to recover back said amount, and then and there served said treasurer with written notice of its protest and determination to sue to recover said amount, as illegally assessed and required to be paid.

12. The United States government also levied and collected a tax on its said gross receipts for the year 1870.

13. Plaintiff is entitled to recover from said defendants said sum of $5,757.93 so paid under protest, together with interest from January 25, 1871, for which it prays judgment.

Collins f Herron, for plaintiff in error. I. If the taxes complained of were illegally exacted, they may be recovered back. They were not voluntarily paid, but paid under compulsion. Sections 1 and 2 of the Statutes, 2 S. & C. 1151; Baker v. Cincinnati, 11 Ohio St. 534; 7 Wall. 128; 8 Wall. 209; Deady, 400.

II. The legislature of Ohio has no power, in raising revenue for general purposes, to levy a tax upon any business, pursuit, or avocation, or upon the receipts of any business. Its power in this regard is limited. The only basis of taxation in Ohio is property. The people of the state, in their Constitution, have purposely restricted the legislature from any capricious, partial, or unjust exercise of the taxing power. Constitution, art. 12, sec. 2, and art. 13, sec. 4; 3 Ohio St. 10; Mays v. Cincinnati, 1 Ohio St. 273; Zanesville v. Auditor, fc. 5 Ohio St. 589; Hill v. Higdon, 5 Ohio St. 246; 11 Wis. 42; 2 Black, 511; Bank v. Hines, 3 Ohio St. 1; State v. Roberts, 11 Gill & J. 506.

III. The act in question infringes upon the Constitution of the United States. It is an attempt to make the people of other states pay tribute to Ohio for the privilege of stringing lines of wire through the air, for the passage of an insensible fluid, or rather for the passage of ideas, in a manner that in no way hinders or annoys the people of Ohio, but rather blesses and enlightens them. It is more illiberal than duties levied upon goods that may happen to be borne through the state, or brought into the state. It is quite as much an obstruction of free commerce among the states as it would be to levy a poll-tax upon every person coming into the state or going out of it on commercial business.

Nay, it is an impediment to the free operations of the national government itself. In the movement of armies, the rapid concentration of troops, the early promulgation of orders from the head of the army, or of any other department of the government, such legislation by the states might prove a serious embarrassment and obstruction. Crandall v. Nevada, 6 Wall. 36; Brown v. Maryland, 12 Wheat. 449; Weston v. Charleston, 2 Pet. 419; People v. Tax Commissioners, 2 Black, 620; 7 How. 400, 414; Ward v. Maryland, 8 Wall. 432; Gilman v. Philadelphia, 3 Wall. 737; 15 Wall. 28, 284.

Forrest, Cramer f Mayer and Follett f Cochran, for defendant in

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1. Corporations are not citizens within the meaning of section 2, article 4, of the federal Constitution, which guarantees to the citizens of each state “the privileges and immunities of citizens in the several states.” That clause refers only to natural citizens, and not to artificial persons created by the laws of the several states, and a corporation created by one of the states can exercise none of the functions or privileges conferred by its charter in any other state of the Union, except by the comity and consent of the latter.

This is directly decided in the following cases, 9. v. : Paul v. Virginia, 8 Wall. 168; Ducat v. Chicago, 10 Wall. 410; Liverpool Ins. Co. v. Massachusetts, 10 Wall. 567.

Section 8, article 1, of the Constitution of the United States, which confers upon Congress the power “ to regulate commerce with foreign nations and among the several states," &c., does not prevent the several states from affixing such terms as they please as a condition of allowing foreign corporations to do business in such states, and to make binding contracts there, or from forbidding such corporations from doing business in such states at all. Gibbons v. Ogden, 9 Wheat. 592; 8 How: 73; 8 Wall. 183; 3 Wall. 713; 15 Wall. 284; 18 Wall. 206; 21 Wall. 492; 10 Wall. 566; 8 Wall. 168; 21 Ohio St. 451.

II. Such taxation is not repugnant to section 2, article 12, of the Constitution of Ohio. 10 Wall. 410; 15 Wall. 284.

Again, this tax is not a tax upon property, but is a tax upon a franchise granted by the state, and is in no manner subject to the provision of section 2, article 12, of the Constitution of this state. Society for Savings v. Crite, 6 Wall. 594; Protection Society v. Massachusetts, Ib. 611.

III. The payment, as described in the petition, is not an “involuntary payment,” such as to entitle the plaintiff to sue for the recovery of the money. Sections 1, 2, 3, 4, 5, 6, 7, of the Act of May 1, 1862, and the Amendatory Act of April 13, 1865, S. & S. 171; Mays v. Cincinnati, 1 Ohio St. 278; Marietta v. Slocomb, 6 Ohio St. 471. See, also, Awalt v. Eutaw Building Association, 34 Md. 485; Lester v. Baltimore, 29 Md. 415; Baltimore v. Lefferman, 6 Gill, 425; Fleetwood v. New York, 2 Sandf. 475; Knibbs v. Hull, 1 Esp. 34; Brown v. McKinally, 1 Esp. 279; Bilbie v. Lumley, 2 East, 468, 469.

JOHNSON, J. Three questions are presented by the demurrer to the


1. Was the payment of these taxes an involuntary payment, within the purview of the statute authorizing the recovery back of taxes illegally assessed and collected ?

2. Is such tax on the gross receipts of a foreign telegraph company for the preceding year, where such receipts were mostly from messages pertaining to commerce, or on messages originating or terminating out of the state, or were chiefly earned on the company's lines outside of the state, a regulation or restriction of commerce between the states, and so in conflict with the Constitution of the United States ?

3. Is the act (S. & S. 769-771) under which this tax is assessed and collected authorized by the Constitution of this state?

I. What constitutes such an involuntary payment of an illegal tax as will warrant an action to recover the same back under the statute (2 S.

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