Omaha daily bee., 1902-04-01
ON POINTS OF LAW
TAI Mandamus Case is Reduced to Strictly
Legal Basis,
REFEREE RYAN DEFINES HIS POSITION
Says that on Showing Of Facts RE-
Iators Are Entitled to Writ, but
There May BE Legal
Obstacles.

Referee Ryan has again declared him
self as to the status OF the tax mandamus
hearing. and his position is virtually the
same as a week ago. He said Monday aft
ernoon:
81 am convinced that the REALTORS are
10 fact entitled to the writ. They have
technically demonstrated their right to It.
and the only things standing in the way OF
II now are one or two law points upon which
/ am still in doubt. One of these is section
81 OF the Nebraska revenue laws, which
clearly says that in assessing franchise cor
rorations the bonds must be subtracted
from the stock In order to ascertain the
value Of the franchise. Does this law apply
to corporations in cities OF the metropol-
titan class7 That is one point upon which
] want light. Another is: Had the assess
ing bodies Of Omaha a right to assess prop
erty at 40 per cent or any other per cent
'ot its value, when the charter says 1t must
be assessed at its fair cash value?
81 throw out these suggestions now, gem
tlemen, so that you will have time to con-
suit authorities on them before court con-
venes again Wednesday morning. So far
as / am concerned, l don't care to hear
any further testimony along the line we
are now investigating, for. as l told you, l
have an abiding conviction that the re-
lators are entitled to the writ as a matter
of fact. However, the supreme court will
not grant a writ Of mandamus II it would be
fruitless. II there are laws existing which
the writ, II enforced, would Violate, then
there Is no use Of my asking the supreme
court to grant one
Attorney Mcintosh said: But the court
may not look at it as you do, your honor,
90 / think 1 had better proceed along this
line and finish my record"
Referee Ryan said: 81 don't think the
supreme court Is inclined to split hairs"
Mcintosh Ia Satisfied.
After the announcement for the day Mr..
Mcintosh said he was perfectly satisfied
with the referees position. "If it goes to
ahe supreme court in that shape he said,
there is not the least doubt but that l
shall get my writ, because those questions
of law that bother Judge Ryan will not
last a minute with Judge Sullivan. He will
not let them stand in the way of the writ"
When court convened Monday morning
the attorneys FLASHED almost Immediately
on the question OF whether City Council
men Zlmman, Lobeek and Burnley would
be permitted to give oral testimony in con-
tradiction of that part of the record Of the
Board Of Equalization written up by City
Clerk Elbourn about a month after the
board adjourned. Such evidence was offered
by Attorney Mcintosh and was objected to
by counsel for the respondents. The OBJ
lection was sustained. Referee Ryan held
that he did not care to inquire into the
fact Of whether or not the clerk did his
duty.
Attorney Mcintosh appeared fresh and
vigorous yesterday morning after his rest of
two days. He began by continuing the ex-
animation Of City Clerk Elbourn. Refer
.H-- - NhA rannn vnInV1ao taLan NJ Nha
time the board was in session, he pointed
TO a note made with a different kind of
q lead pencil, which read, Agreement with
Wead," and asked:
when was that minute made?"
January a." was the answer.
Then, pointing to the note in Its expanded
form in the journal, he read, I'm accord
ance with the request Of F. D. Wead the
hearing OF all complaints against the fran
cbised corporations was fixed for Friday.
January H. at 2 p. m. and the clerk was
Instructed TO 30 notify said corporations"
when was that written" he asked.
February II, l think"
could you hold in your mind the exact
words Of the order an entire month";"
Attorney Webster objected to this ques-
zion. and the objection was sustained.
you wouldn't undertake to say that the
language In this entry is correct?" was
Mr.. McIntosh's next question.
mo: I say 1t is as / remember It," was
khe answer.
Councilman Zimman Called.
Councilman Harry B. Zimman was then
called to the stand.
"Mr. Zimman," asked Mr.. Mcintosh, was
there any order made by the board that day
relating to the hearing Of the public serv-
See corporations, the street railway CON-
pany and others?"
mo. there"
( He was interrupted by the city attorney
and all the corporation counsel in chorus.
you're altogether too flip With your an
swers, Mr.. Zimman," exclaimed Mr.. Web
ster, with asperity. "Both the answer ana
The question were intended for the benefit
of the press, and not in the interest Of
Justice"
His answer was the TRUTH said Mr..
Mcintosh.
There was no more testimony during the
forenoon session. the remainder Of the time