Omaha daily bee., 1902-03-15

the facts at issue here. Any incomplete
report would be a misfortune"
ID l understand that the 40 per cent
basis Is a custom heref"
mot q custom IN the legal sense. your
honor" lnterposed Attorney Morsman, be
cause II is in violation OF the statute"
Fact, NOS n Custom.
Il don't claim it's a CUSTOM" answered
Mr.. Mcintosh. Il claim It's a fact, in this
case"
Car you bring In the tax commissioner
order to that effect?"
Mr.. Mcintosh said he thought he could.
1T would be a valuable piece Of evil
dence," said the referee.
when the members Of the city council
we're elected as sueh.i, resumed Mr.. McIn-
tosh, they took .. safemn oath to perform
their duty. One OF their duties was to sit
a. a board Of equalization. and equalize the
assessment and heat complaints. This they
have failed to do. To this extent they have
violated their oath OF once. 1t is not
enough to say that they heard some COM
plants. They had no right to refuse to
hear any complaints. You might as well
say that a board Of canvassers can throw
out all ballots they choose and thereby
change the result Of the election. They
would be defeating the Will Of the people
in q no less fragrant IA than this
Board Of Equalization has done.
There has been q great deal said about
the REALTORS having q remedy at law which
bars us from resorting to the extreme rem
edy Of mandamus.- But the statutes say we
cannot resort to mandamus when we have
q clear and adequate remedy in some othei
way-which we have not. Even though
there was an Judgment here in
stead OF a raid Judgment no appeal would
lie. Nor can we sue out a writ Of error be-
cause they've refused 70 permit us to make
a record. p
Lack of Judicial Discretion.
They say you can't get the court to is.
| sue a writ Of mandamus 10 control judicia
discretion. Quite true, but there's a differ
ence between judicial discretion and a re-
iusaI to act judIclaily. There's a difference
also between entering an improper judy
ment n entering a judgment before The
times comes fer triah One is erroneous
and the other Is void, D.
"But my friend says the law says yo'
must assess property at is fAir cash value
and here the REALTORS come in and want I
assessed at 20 per cent Of sita. fair casl
value. It's no illegal matter TO equalizi
the tax on the basis upon which the assess
ment is made. The Board OF EQUALIZATION
is not an assessing board; ITS, an equaliz
ing board, It's their duty to do the thin
that Will make It equal. They've got L
have some point at which the extreme
could meet or else you couldn't equaliz
IT."
Mr.. webster interrupted the. speaker 4
say: -
Then II this tax commissioner has VIC
lated the law, as. In closing this 40 pc
cent basis he admits he has, then you woul
have tie court mandsmus all his successor
in ONCE to violate the Same law. Is tina
your position 2"
HE has not violated any law" answere
Mr.. Mcintosh. THE statute which define
the prefogatives Of tax commissioner 1
this respect is directory. not mandator,
The language clearly establishes tina
point"
why didn't you ask to have the corpora
lions assessed at their fair cash value in
stead of at 40 per cent of their fair cas-
v~alue?" asked Mr.. Conne1l. That woul
have been according to law"
Because answered Mr.. Mcintosh, "ths
would have been unfair to the ,corpors
TONS" f' -"