Omaha daily bee., 1902-07-17

to require that Il shall be assessed al the
value which 1t has, as used, and by reason
OF its use.
Nothing is said about the assessment of
franchises. Why? Because within the
two terms railroad track" and rolling
stock was comprehended everything Of
value Of railroad property. That SUCCESS
ton finds force from a subsequent case In
the same volume, commencing at page 439,
In which the contention was more vigor-
ously made that it was a tax upon inter-
state commerce, in which the direct ques-
ton was put to one of the state ofhcials
on his examination az a witness, IL he as
sessed anything for the franchise Of q GER
tain road, and he answered he did not.
Justice Brewer comments upon that in his
opinion and says or notices distinctly
that the franchise was not assessed.
And, by the way. we might say here
that Of course franchises are property,
and the fact that a franchise Is
named in the constitution does not give 1t
any additional force. BY way Of paren-
thesis we might say here It might just as
we'll have been left out. Justice Brewer
SAYS in that opinion, at page AS:
The rule OF property taxation Is that the
value OF the property is the basis of taxa
esrnin y G %Sicb not The me prop a TAX m sPPSa I Ine
for the privilege of using the property. but
rests solely upon the value. But the
t Sssue use St to tHe w%RR ffSRRertigt fi is pnt fr and
varies with the proftableness of that
anticipated. There Pr IS nc pecuS SGlgsi value ane
outside OF that which results from such
use. The amount and profitable character
property is taxed at it's actual cash value
IL is taxed upon something which is cre-
ated by the uses to which It is put.
So we say that this decision contemplates,
| uvban the board aasa~aad Nho -.aI-zua -
! erty under the designation railroad track
and rolling stock" they included every
thing Of value in railroad property. Now
this is borne out by another case which 1 did
not cite in my brief. 1t is the case OF De-
troit Citizens Street Railway Company
against Common Council of City Of Detroit,
So N. W. 90. / will not attempt to read any
great portion of that case, but here Is the
gist of IT.. 1t is found in the fourth para
graph Of the syllabi:
If property, may. be assessed as a unit
there is no obligation to value Its separate
elements.
Now that would naturally dispose Of all
this cross-fring at these men who were
put upon the stand and asked IL they
separately valued the franchises Of these
corporations, because under the statutes of
the state Of Nebraska they are not obligated
to assess the franchises OF the corporations
separately.
In this Kentucky case read here 1t is
proper to say that they have a distinct
statute requiring that the franchises shall
be assessed separate and apart from the
tangible property. Section 4O77 Of the laws
Of that state provides as follows:
Every railway company or corporation
and every Incorporated bank, trust COM
pany, guaranty or security company, gas
bridge company, street railway COMPANY,
express company. electric light company,
p pisTy,'c press eSwe disp e9mRAH com iseIesra {spep nome
company, turnpike company. palace car
company, dining car company, sleeping car
other IKE company. corporation or associa-
ton, also every other corporation, company
Special or Exclusive priyiIeEe or fraScs ans
not allowed by law to natural persons, or
reforming any public services, shall, in adj
dition to the other taxes imposed on II by
law. annually pay a tax on its franchise
to the state and a local tax thereon to the
county, Incorporated city, town and taxing
district where IT'S franchise may be exer-
cised. 20
1t is a legislative enactment and entirely
different from ours. Your Montana law
is the same. They simply have the value
Of the use Of the property valued by IT.
self and then the value OF the tangible
property valued by itself, and then aggre-
gated. In other words, they are separated;
here we combine them and assess them to-
gether. / want to call your attention to this
section 80 just for a moment. / do not I'M
derstand that section 80 contemplates the
aggregation of stocks and bonds for the pur-
pose Of finding the value of the property of
corporations under the construction this
court has placed upon It. It does not say
anything about adding the value of stocks
and bonds. The fifth and sixth items de-
duct. the debts and value of real and per-
sonai property. The method these gentle
men contend for is not found In that stat
ute. OF course that statute is not applica-
Bile here because, II l I'M correct in my
premises that the value of the property as
a used, going concern Is to be valued, then
1t could not be legally assessed under sec
tion 80 for many reasons. You would get
the franchise twice, and 1t was never in
tended. And again, the very fact that the
law was passed in 1873 and section 80 being
the part referring to stocks, and sections 80
and 40 referring railroad property, were all
passed at one time and at the same session.
Upon the face of these respective statutes
1t appears that the unit idea was in the
minds of the legislators; they wanted to
assess the railroad property as a unit by
one tribunal, with a view OF avoiding the
annoyance and Inconvenience involved in
ooS-oihb AahiOdI pAOpCHfy anu tue many
-incongruous results produced by local as
sessments. and / say, II you eonstrue sec
tion 80 with sections SO and 40. 1t wholly de-
stroys the unit idea, because, under section
80. is assessed the value OF the franchise
by the local assessor, or State Board of
Equalization, without the latter being
named in the statute. The local assessor
makes one assessment under section 80, and
the state board another under sections 80
and 40. This was not contemplated, and IL
is not the law. Sections II, rs and 1877 OF
the Indiana law. and sections so, 80 and 40
OF the Nebraska law are parallel statutes.
1t was no more contemplated that there
should be a separate valuation Of the fran
chises under the Nebraska law than under
the Indiana law. l say this is borne out
by the Backus case. which have men
toned. II that is true, then these men
were justified in saying I'VE assessed this
property with reference to its use. We
assessed II as a live going property. We
assessed II with reference to its earnings
want to call your attention to Mr..
Stusfer's testimony. He said he found the
earnings of the Union Pacific main line to
be $4,000 or $1,000 per mile You will and
on page $50 OF the auditors report
where he got those figures. So these
intangible things. these franchises, are
not to be valued separate and apart.
Iaf ne M afan faWthau nu,