Omaha daily bee., 1902-03-18
NO FORTY PER CENT BASIS
Mr.. Mcintosh Strikes it Out in His
Amended Petition.
WANTS BOARD TO ASCERTAIN STANDARD
In ResuminE Argument Real Estate
Exchanges Lawyer Cites Case
where Mandamus R-econvened
nm Election Board.

Attorney J. H.. Mcintosh. who appears
for REALTORS Shriver and Morton in the
tax mandamus case. has amended his APP
plication for the writ. In the amend
ment the words 40 per cent basis do not
appear. The supreme court Is asked to
compel the city council to reconvene as
a board Of equalization and ascertain
what the standard Of valuation is" and
then make the assessment Of the corpora
tions conform TO such standard. The
amended portion follows;
That from the evidence before you you
determine the fair cash value as OF the
date Of such 1892 assessment Tor taxauon
for the city of Omaha of all the personal
property and franchises of each of said
corporations within said city of Omaha and
subject to taxation therein for said 1902
city taxes, and that you also ascertain the
standard of valuation adopted and en-
ployed by the tax commissioner, his depu-
ties and the Board of Review OF said city
in making the assessment of all taxable
property within said city for said 1917 taxes,
and bring the amount of the several as;
m of the personal property and
franchises of the said several corporations
within said city and subject to taxation
therein for said 1902 taxes to said standard
and certify the respective amounts so as
certained to the tax commissioner of said
city as the corrected and equalized assess
ment.
ms bhlu MI MtlhNobns 10 IL sAho
in spirit as the original. 1 have made no
change in my position; the only difference
is that in the amendment the language Is
less specific. 1t amounts to the same in
the end"
Mcintosh sun Argument.
The hearing before Referee Ryan was re-
sumed at $3.50 yesterday morning, at which
time Mr.. Mcintosh took up his address at
the point where he left off Friday evening.
The six attorneys representing the city and
the FIVE public service corporations were
present. The spectators benches were
well filled.
Mr.. Mcintosh cited a st. Louis case,
wherein a committee Of property owners
was denied the right OF hearing before the
election board of the Board of Education of
that city. The purpose of the hearing
asked for was to protest against the APP
pointment Of a solid republican board
whereas the charter provided that the
board should comprise an equal number
Of democrats and republicans. The prop
erty owners applied for a writ Of man.
damus, compelling the election board to
reconvene and correct its finding, and the
writ was granted.
I'm this report" said the speaker, 1--WE
ind the counsel for the respondents inter-
posing the same ancient technicalities as
the counsel for the respondents in the case
now before your honor. "A writ of man
damus can't lie In a case where an appoint
ment is already made; the REALTORS had
their remedy In other proceedings than
mandamus; a mandamus cannot be resorted
TO to control judicial discretion etc, etc.
It's the same nest of technica1ities that Is
built up here by these able counsel. The
0htarffnna ara anaianf opA are otyon Ilt4lo
or no weight by courts nowadays. This is
especially true Of federal courts. II a right
exists, the court will find a way to grant it."
THE value of these cases cited outside
of the state, as l take it." said Referee
Ryan, SIS merely to enable us to get the
advantage OF the reasoning, and the steps
by which the courts reached their de-
e%isions. You don't expect me to be gov
srped By them"
Cases strikingIy Parallel.
Certainly answered Mr.. Mcintosh.
"such cases are not presidents, but
merely authorities. But the cases are
strikingly parallel, and so they may be
compared with advantage. In the Mis-
souri, case the court not only revoked the
work already done by the election board,
but ordered 1t to reconvene and to APP
point a board to comprise one-half demo-
Gratis and one-half republicans"
WAS not that controlling judicial dis
cretion?" asked Referee Ryan.
1T might have been, your HONOR was
the answer. "and I don't ask this court to
90 SO far in its recommendation. But the
tendency OF the Missouri decision is to
show that the court would not permit strict
rules Of law to stand in the way Of Justice"
Hard cases make bad precedents," said
the referee. Couldn't that court Just as
we'll have commanded the election board to
appoint all democrats or all republicans p
Perhaps It would work out that way log
ically, but that would have been a most
fragrant control OF judicial discretion. As
II stands the court merely said, Meet and
do your duty and then pointed out what
that duty was"
Nov, the counsel for the respondents are
placed in a peculiar position with reference
20 what took place before the city council
between the 18th and Goth OF January" said
Mr.. Mcintosh. taking a new tack. They
can take their choice between the two
horns which the dilemma presents, and It
ts immaterisl 10 me which they take. They
must assume, either that the complaint