40
The Green Bag
where a consolidation has been effected in accordance with a state statute fixing the value of the franchises, and the state has never questioned the validity or fairness of the valuation, the state cannot later question the value at the time of consolidation, nor should an increase in their value, after consolida tion, be admitted without evidence sufficient to warrant the finding of such increase. The Court further denied that an in crease in the real estate and tangible property of the corporations made it reasonable to suppose that the value of the franchises had increased in like ratio, as maintained by the court below. The Supreme Court thus seems to have been loth to recognize that a franchise is "productive and inherently valuable property, "as a franchise,without evidence to show that its value has been increased by the operation of specific causes. The implication of Judge Peckham's opinion is clearly that values of fran chises must be scrutinized with great care before one jumps to any conclusion regarding them. And the tendency of the opinion, though it is difficult to quote any words to that effect, is un mistakably in the direction of the lowest valuation of franchises compatible with constitutional rights. Its trend is in the direction of the doctrine that fran chises are public property and should not be a source of private profit. No comment is here offered on the doctrine in question, beyond an ex pression of the conviction that public franchises, as public powers exercised by private persons for the public benefit, are of a value which is arbitrary and not accurately ascertainable; and as prop erty which has never really passed into private ownership, they should be treated as neither capitalizable nor
taxable, the state obtaining needed revenue by taxing the tangible rather than the intangible property of public service corporations. While this theory has not yet received the impress of judicial authority, it is likely in time to become law, and its ultimate adop tion would tend to simplify many tangled problems.
AN EDIFYING CHARGE It would probably be well to disguise the identity of those mentioned in the following report, sent us by a corre spondent who writes:— "This memo of the Judge's charge is sub mitted 'without prejudice.' Every actor men tioned in the report has passed from the stage. I knew them all, well. If the names were needed by the editor, they could be furnished. One of the counsel was my office-mate for more than twenty years and then Governor of the state. "The portion of the charge embraced was reduced to writing the day it was delivered. The enclosed report was made for the Green Bag, years ago, pigeon-holed, misplaced, and forgotten until the old file turned up last week. The number of years in the report is corrected according to this date." The report follows:— STATE v. WILSON It was bordering on thirty years ago, in one of the courts in the Ohio Valley. The case had been argued; the judge had charged the jury—if such an effort could be called a charge—and at the close had fallen into an error much to the prejudice of the accused. Col. T. arose and called attention to the error to the prejudice of his client and asked to have it corrected. The judge pro ceeded as follows : "Gen-l-men of jury: "I didn't shay that. If I did (hie) 'twas a mishtake. Counsel states the law c'rectly. My friend, Mr. T., 's bin (hie) Secretary of State, 's 'tinguished lawyer, and knows what
