The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-10-28
UPSET 1T ALL.
An Important Decision in Gas
Company Case.
Special Master Brock Makes a
New Rule.
BOOKS TO BE EXAMINED
Company May Show by Record
Cost of Making Gas.
Nearly Whole Day Consumed in
Legal Argument.

only are those portions of the gas COM
pany's books which have been intro
the city has the right to inspect all the
other books and records of the COM
pany, and inquire as deeply as desired
into the method of keeping the records.
In making this ruling, Mr.. Brock
overturned all the work which Judge
Mcfarland had been doing for the city
during the day. Judge Mcfarland
saved exceptions to the ruling and win
argue it further before Judge Hook if
opportunity is offered.
The ruling follows the precedent of
Referee J. G. Slonecker in the Western
Union cases. and of the federal judges
case effecting the rate question.
According to the we'll esta blished prin-
ciples of law, it appeared that Judge
Mcfarland had all the best of the stu
alton, but Mr.. Brock held that modern
conditions demand modification of the
old rules, and that the tendency of mod
ern decisions was to throw down the
barriers which had existed.
IF that's the case" said Judge Nc
Farland I guess 1 will have to go to
school again"
No" retorted Charles Blood Smith,
you ought to keep up with the times"
Judge Mcfarland built up what ap-
peared to be an impregnable barrier
against admitting into evidence any of
the testimony given by H. S. Morgan
on the subject Of the manufacture OF
gas at the Topeka plant. All day was
spent by Mr.. Mcfarland in laying the
foundation for his position. He proved
by hours of patient questioning that H
S. Morgan had little or no personal
knowledge of the truth or falsity CT the
statements which he embodied In the
records of the company. having received
all these statements second or third
hand from subordinate employees. At
about o'clock in the afternoon the
foundation was complete, and then, like
a lyfr 10
specifications for the superstructure
Mr.. Mcfarland read long and COM
prehensive objection to all of Mr. Nor
gan's testimony. and to all of the books
and records OF the company. He then
proceeded to build up massive bulwark
of legal authorities on the plan laid
down
He contended that all records of this
nature are either books of account or
private writings Authorities were cited
to prove that books of account must
contain charges made by one party for
something against another party, which
the gas company's books do not. He
then asserted, therefore, that the books
must be introduced, If introduced at all.
as private writings To be competent
testimony, he maintained that Mr.. Nor
of the truth of the writings at the time
they were written. which Mr.. Morgan
had testified he did not have. Private
writings, so Mr. Mcfarland held, can
De USED only TO re1reSh TIE memory, and
must contain facts which the witness at
some time knew of his personal knowl-
edge to be facts.
In reply to this argument, which was
about one hour in length, Charles Blood
Smith in substance admitted that un-
der the technical rules of law, Judge
McFarland'S position was correct, but
asserted that modern business methods
made it absolutely essential that such
technical matters be swept aside. and
that books of record such as those of
the gas company, be received as evil
dence. He cited the recent Nebraska
ruling, in which the computations of
the accounting department of railroad
were introduced into evidence to prove
that a certain rate was confiscatory.
If Mr.. Brock had sustained Judge Nc
Farlands contention, it would have al
most knocked the foundation out from
under the feet of the gas company. for
it would have made it well nigh impOs-
sible for the company to prove how
much it costs to manufacture gas, how
much is manufactured and sold, and
what the net and gross receipts are.
IF you hold this way, your honor.
said Judge MacFarland, after Judge
Brock had given his decision. "it re-
verses the whole theory of the law. In
stead of the burden of proof being on
the plaintiff as it is supposed to be. we
are obliged to assume that the plaintiff
in this suit has a good case, and it is
the business of the city to prove that
the position of the company is wrong
mo | think not said judge Brock
I'VE must simply take these records for
what they are worth. If you can show
that Mr.. Morgan has made false entries in
these books. it will go far toward discred
iting all the records. If we tried to go
back to the original records, it would take
months and years of time. and would
bankrupt the city and company both. If
there is any record or memorandum in the
possession of the gas company which the
city wants to see, I will issue an order
for it to be produced I believe the city
has right to see all the records of the
company, and If there is any disposition
to hold back anything, it will tend to
prejudice the confidence which we have in
the records which are produced
Judge Brooks decision is very import
ant one. following as it does the trend of
recent decisions in overturning the old es-
tablished rules of evidence.
Practically the whole day was co lsuTne j
legal obstruction. and the destrucfi )1 of
all the work by Judge Brock. Judge Nc
Farland filed a number of written obiec-
tions to the testimony of H. S Morgan.
which were made part of the records in
the case. At about o'clock the hearing
adjourned
Next week the special master. after
news and stenogra Dber in the dollar gas
case will all go to Chicago there to take
the testimony of number of experts on
the cost OF manufacturing gas and the
methods of manufacture. This testi-
nony is to be taken in the interest o.
the gas company.
At noon. today the examination of H
s. Morgan former manager of the com
pany, was concluded for the time being,
though both sides reserved the right to
recall him for further questions,
+, Judge Brock received a telegram this
morning from District Judge Heller,
stating that one of Mr.. Brooks cases
was on for trial at Alma and instruct
ing him to come at once. Mr.. Brock