Omaha daily bee., 1902-07-17

the last moment at the time when all
other remedies have been exhausted and
when there is no other remedy Of which
the party can avail himself.
Chief Justice sullivan-Does 1t appear
that this corporation. the Bee company,
has any matter appearing before the
board?
Mr.. white-I understand that that was
the institution that appeared before the
board.
Chief Justice SULLIVAN don't know
Mr.. whitehall is a fact. isn't It?
Mr.. Simeral-It filed a protest there.
Mr.. White-They filed their protest and
asked that the franchises be assessed, and
they say In the alternative writ that the
members OF this board said they had no
right to consider the franchise and that
they did not consider It. Now, I say they
knew that, and they could have had all OF
those facts and circumstances put into a
bill Of exceptions, taken 1t to the district
court and there had the matter reviewed.
SO l say there are two things to consider
here as preliminary. First, II there
was no fraud In the action Of this state
board this court cannot send forth the ex-
traordinary writ Of mandamus and cause
these people to reconyene and reassess
| railroad property. They have already done
/ hhdt IL IbAhAANu VI uAANA NAO Nv"
They did meet. They did move. They have
exercised their discretion. They have per-
formed thei- judicial function In determin-
ing the value and assessment Of this rail-
road property. But second, even II there is
fraud here, then we say It was Just as APP
parent to these men on the day when that
| Judgment was entered as Il Is now, and
they ought to have taken the proceedings
provided in the statute for reviewing It In
the district court. They have not done
that.
But suppose we eliminate those questions
in the further progress OF the argument.
Suppose we enter upon the consideration
OF fraud here. Let US see then where we
stand. Fraud Is not to be lightly pre-
sumed. This board is composed Of honor
able men, who have been regarded as stand
ing we'll In the communities in which they
have resided. This court. then l say, will
not lightly presume that fraud has been
attendant upon their action or that they
have had any other intention than that Of
fairly and honestly performing their du-
ties, and the mere fact that in the valuation
Of this property the board has placed II
lower than this court would have placed
1t should not influence this court in
determining that these men-that this
board was guilty Of fraud. l have
referred to a lumber Of cases In my
breif here which l will not undertake to
read, but which are quite pertinent to this
line of argument, and IN which It is held
that even were the assessed valuations con-
! siderably lower, or we're they considerably
4 greater than the court would have assessed
IL 1t had been considering valuations, yet,
so long as they appear to be the expression
Of an honest exercise Of judgment Of the
$500 A.. a,-nAA ~ AnNArfArad
with
l desire now to refer more particularly to
the Elkhorn company for the purpose OF
showing that there is no fraud so far as n
is concerned. Under the evidence that has
been introduced here, 1 rave tabulated the
earnings OF that road for eight years. ]
find that the total net earnings Of that road
for those years as shown by Poor's Manual,
1901, page 207, aggregate about SIC, 0e2, 500,
making the average for q year 81 1887, 1924,
making the average per year per mile-our
mileage being 1858 miles-3s22.s SO. Now
mind you, that 10 for the whole system and
we take into consideration South Dakota,
Wyoming and Nebraska think It would
be in the neighborhood Of $3.50 or 1000, II
we confined 1t simply to Nebraska Now,
then, adopting the method used by relator,
and you might capitalize that at 4 per cent
and it would make $685. 900 per mile in
round numbers. one-sixth Of 323, 900 per
mile would be something like $s,s45. Now
mind you that Is at 4 per cent. II II was
one-seventh It would be 1895 a mile.
But 4 per cent Is not fair, because the
Elkhorn company he's outstanding about
$21 .000, 900 worth of bonds, of which almost
81. 900. 900 bear 6 per cent interest. matur-
ing in 1888. There are about S18, 900, 900
worth Of bonds which bear 8 per cent,
maturing some time in the future, upon
which only 4 per cent interest is paid by
reason of this. These bonds are guaran-
teed by the Northwestern Railway COM
pany. The latter places its own bonds at
4 per cent. secured by the Elkhorn bonds
above mentioned as collateral. The North
western simply requires of the Elkhorn
bond the payment of 4 per cent interest
thereon. hence there is only about 81, 800, :
900 upon which the EIkhorn pays 6 per
cent interest. On the balance of the $751;
900. 900 worth Of bonds II pays only 4 per
cent. but this is not a fair rate of interest
to the Elkhorn company. / simply refer
to the 4 per cent because that is the ex-
tremely low rate which the REALTORS claim
railroad property Is entitled to earn. Cap
italizing at 8 per cent the value per mile
would be about SIS, 457, one-sixth of which
for the purposes Of assessment would make
the value $S,07s. The assessment OF the
Elkhorn company is 50. 800 per mile. One
seventh OF the valuation, and the board say
they assessed railroad property between
one-slxth and one-seventh. II should have
been assessed at 1887. If $3.50 or 1000 is
capitalized at 6 per cent the valuation
would be measurRbly less per mile. Even
at the low rate Of interest eontended for
by the REALTORS the assessment of the Elk
horn company shows upon It's face tina;
there was no fraud upon the part Of the
board.
Another thing to take into considera-
ton is that the members Of the board say
they had evidence before them showing
that this road could be reproduced for be-
tween 5000 and $40, 900 per mile. One
sixth OF SIS. 900 would be about $3,100 per
mile. and at 500 0 per mile it would be q
little more. The Elkhorn assessment Is
$500 per mile aud is one-seventh Of $685.
200. 1t is true that the road has probably
cost more, but the greater portion OF that
road was built years ago, when It could
not be built as cheaply as now. It car
now be reproduced for about $50. 900 per
mile.
So. l say that anyway you figure 1t II
shows that there Is no reason for charging
fraud upon the board in the assessment Of
the ElkhoTn property. Page 1870 in the last
auditors report shows the mileage Of the
Elkhorn road. and It shows the assessed
vaIua and a. ahruta the NAT aar,In.g ~,