State ex rel. Pabst Brewing Co. v. Carpenter

Cassoday, C. J. This court took original jurisdiction in this case because it involved the validity of ch. 44, Laws of — 185 — 1903, and the same question was involved in another action pending before us on an order for re-argument, and so it was desirable that such question should be fully argued before determination. The decision in that case has made it unnecessary to say anything further about the validity of that act in this case. Nunnemacher v. State, post, p. 190, 108 N. W. 627. As indicated in the foregoing statement, the executors of Frederick Pabst, deceased, in obedience to the subpoena duces tecum served upon them, brought into the county court, and were ready to produce, “all the private books of account kept by” said deceased, “and all papers and certificates of stock and other documents bearing upon or relating to the stock of the Pabst Brewing Company owned by said” deceased, “and all books of account kept by the executors of the last will and testament of said deceased.” But the relator did not obey the subpoena duces tecum so served upon its secretary and bring into court its “books of account, cash books, ledgers, stock books, and other books, papers, and documents,” and its “trial balances made out and prepared” about January 1, 1903, and January 1, 1904, nor any of them, on the alleged ground that the county court had no authority or jurisdiction to compel such production. The question, sharply presented, is whether the county court had such authority and jurisdiction. As indicated, the deceased was a large stockholder in the relator at the time of his death. The state contends that it became essential for the county court “to ascertain the fair market value” of such stock in order “to determine the inheritance tax” that the •estate was required to pay, and the state concedes that “this is practically the only property in the state concerning which there is controversy as to the proper valuation.” The relator concedes, in the language of the act, that “the tax so imposed” is to “be upon the clear market value of such property.” Sec. 1, subd. 6. The relator also concedes that such value is to he determined either by the appraiser, appointed — 186 — for that purpose under secs. 13 and 14 of the act, or by the county court, as prescribed by sec. 15 of the act. In case an appraiser is appointed, he is therein required to fix and appraise the property “at its fair market value, . . . and for that purpose the said appraiser is authorized to issue subpoenas and to compel the attendance of witnesses before him and to take the evidence of such witnesses under oath concerning such property and the value thereof; and he shall make-report thereof and of such value in writing, to the said county court, together with the depositions of the witnesses examined, and such other facts in relation thereto and to the said matter as the said county court may order or require.” Sec. 14. And then, after requiring “the county court from such report and other proofs relating to any such estate” to “determine the cash value of such estate and the amount of tax to which the same is liable,” the act provides as follows: “Or the county court without appointing an appraiser, upon giving twenty days’ notice ... of the time and place of hearing, may at the time so fixed hear evidence and determine the cash value of such estate and the amount of tax to-which the same is liable.” Sec. 15. Another section of the act declares: “The county court . . . shall have jurisdiction to hear and determine all questions arising under the provisions of this act, and to do any act in relation thereto authorized by law to-be done by a county court in other matters or proceedings coming within its jurisdiction.” Sec. 12. The language of the act seems to authorize the county court,, with or without the appointment of an appraiser, to ascertain and determine such value of said estate, and for that purpose compel the attendance of witnesses and the taking of their testimony under oath. This seems to be conceded by the-¿relator. The mere fact that competent, material, and relevant testimony may be contained in the books of a third party or a corporation, and that it is inconvenient to produce them in court,. — 187 — is no excuse for disobeying a subpoena. Wertheim v. Continental R. & T. Co. 15 Fed. 716; U. S. v. Babcock, 3 Dill. 566, Fed. Cas. No. 14,484; Johnson S. St. R. Co. v. North B. S. Co. 48 Fed. 191, 195; Amey v. Long, 1 Camp. 14. Tbe relator contends that tbe county court bad no power to compel tbe production of its private books and papers for inspection. Tbe mere fact that tbe stock in question was issued by the relator did not make it a party to the controversy in respect to its value. That controversy was between tbe executors of tbe estate and tbe state of Wisconsin. Since tbe relator was not a party to that controversy, it is very obvious that tbe case presented does not come within tbe statutes requiring a party to produce books, papers, and documents, or copies thereof, or to give permission to take such copies. Secs. 4096, 4183 et seq., Stats. 1898. Nor is there any claim that such books and papers of tbe relator contain any entries or admissions made by the deceased respecting such value of tbe stock in question or otherwise. Sec. 4189, Stats. 1898. See State Bank v. Brown, 165 N. Y. 216, 59 N. E. 1. True, tbe secretary of state alleges, upon information and belief, that there is “no other way of getting at tbe fair market value of said stock'than by examining tbe books of said relator.” But be fails to show bow that way would be effectual; besides, such allegation was put in issue by tbe relator, and there is no proof nor showing of any facts in support of it. Whatever entries, statements, or menioranda may be contained in such books and papers must be regarded as having been put therein by tbe officers or agents of tbe relator and for its private use or benefit. Tbe question recurs- whether tbe relator is compellable to produce such private entries, statements, and memoranda for inspection in tbe controversy between tbe other parties mentioned. In an English case, cited by counsel for tbe state, tbe court refused to compel tbe secretary and solicitor of a railway company to produce certain books and documents, because tbe 'di — 188 — rectors of the corporation were not parties to the controversy and refused to allow him to do so. Crowther v. Appleby, L. R. 9 C. P. Gas. 23. See Doe d. Haden v. Burton, 9 C. & P. 254. It has been, held in New York: “The books of a' bank, not kept by either of the parties to an action, nor relating to transactions between them, but referring solely to transactions between the defendant and the bank, are not competent evidence, between the parties, to show the amount of paper which ha’s been discounted by the bank for the defendant and the number of notes so discounted and renewed. And a statement made up from such books is equally incompetent.” Perrine v. Hotchkiss, 58 Barb. 77. To the same effect: Isham v. Schafer, 60 Barb. 317; State Bank v. Brown, 165 N. Y. 216, 59 N. E. 1, 53 L. E. A. 513. In the note to this last citation it is said: “The general rule is that a person’s books of account cannot be used as evidence upon issues between third persons; that entries in such books as to such third persons are res inter alios acta and cannot be used against persons not parties to them.” To the same effect: 2 Ency. of Ev. 667; Kerns v. McKean, 65 Cal. 411, 4 Pac. 404; Treat v. Barber, 7 Conn. 274; Mercier v. Copelan, 73 Ga. 636; Powers v. H. & L. R. Co. 33 Ohio St. 429; Martin Brown Co. v. Perrill, 77 Tex. 199, 13 S. W. 975; Holt v. Pie, 120 Pa. St. 425, 14 Atl. 389; Minton v. Underwood L. Co. 79 Wis. 646, 48 N. W. 857. So, in a case cited by counsel for the state it was held that: “The court will not grant a motion to compel the opening of the records of a corporation not a party to the suit, but whose records,' it is claimed, would disclose something of importance to the litigation.” Henry v. Travelers’ Ins. Co. 35 Fed. 15. In the absence of circumstances not present here, such supposed entries and statements made in the books, papers, and documents of the relator by its officers or agents have no more probative force as evidence in court, in the controversy be — 189 — tween the executors and tlie state of Wisconsin, than oral declarations to the same effect, made by the same officers or agents, would have had. Such entries and statements.were obviously mere hearsay made by third parties without the sanction of an oath. Such are the rules of evidence applicable in regular-judicial proceedings. Counsel for the relator claim that such rules should be applied with more stringency in a case where, as here, the county court was acting as an appraiser and engaged in securing witnesses and hearing evidence as to the value of the stock in question. ’ In support of such contention counsel cite a casein New York, where, “under the provisions of the collateral inheritance act/’ it was held: “In reference to fixing the value of property for the.purpose of assessment and taxation, the surrogate is made the assessing and taxing officer and as such is the representative of the state.” Estate of Wolfe, 137 N. Y. 205, 33 N. E. 156. See, also, Estate of Ullmann, 137 N. Y. 403, 407, 33 N. E. 480; Amherst College v. Ritch, 151 N. Y. 282, 343, 45 N. E. 876. But in another case in that state, cited by the same counsel, it is said by the court: “The statute does not confer jurisdiction upon the surrogate’s court as such, in the first instance, to assess and determine the tax. The surrogate, as a taxing officer, after the-appraiser has appraised the property, enters his order fixing the tax ‘as of course,’ and thereafter any person aggrieved may appeal therefrom to the surrogate. ... It is clear that the initial steps which the statute requires the surrogates to-take are those of taxing officers, and not of judges.” Weston v. Goodrich, 86 Hun, 194, 199, 200, 33 N. Y. Supp. 382. But, as indicated, our ch. 44, Laws of 1903, authorizes the-county court, with or without the appointment of an appraiser, to ascertain and determine the value of the estate and to compel the attendance of witnesses and the taking of their testimony under oath. But there is nothing in the statutes authorizing the county court, whether acting as a judicial — 190 — tribunal or as an appraiser, to compel a third party, under the facts and circumstances presented in this record, to produce his or its private books, papers, and documents for inspection, and certainly the county court has no such power in the absence of statutory authority. Upon the case presented and the rules of procedure sanctioned by this court, the relator is entitled to a writ of prohibition. State ex rel. Att’y Gen. v. Circuit Judge, 97 Wis. 1, 15, 72 N. W. 193; State ex rel. Rose v. Superior Court, 105 Wis. 651, 81 N. W. 1046. No costs allowed, except the relator must pay the fees of the clerk of this court. By the Court. — The peremptory writ of prohibition is hereby awarded as prayed by the relator.