Omaha daily bee., 1902-07-17

uiiaV iVE Ane TeHpOnuents.
II your honors please, It is fortunate
for us that in the division Of government
we have a tribunal which above the din
and turmoil may retire for the considera-
ton OF important questions that may be
submitted to II for determination. IL is
fortunate, also, that we have constituting
such tribunals those who are learned in
the law, so that when the final conclusion
shall have been made II will not have re-
suited from extraordinary appeals. but
from cold analysis and calm logic. This is
a serious question, and will grow more
serious as time goes on.
30 far as I am concerned, 1t has been
somewhat Of an enigma to me as to just
where our friends stand-our friends who
represent the REALTORS. / understood az
the inception Of this controversy before
the State Board of Equalization tthat It
was the contention then and there that the
franchises OF the class of corporations
: within sections 80 and 40 should be separ-
2 ately valued, but when / peruse the alter
native writ which Is the pleading upon
which the REALTORS stand in this court 1
am somewhat annoyed-I find II somewhat
difficult to say just where they stand upon
. this proposition. For, while they claimed
to Lave been entitled to an assessment Of
the franchises separate and apart from
the pnyblChl property before the OLale
Board Of Equalization the writ in its con-
e. clusion seems to point to the thought that
= there should be one assessment of all OF
y the railroad property of the respective
p companies. But when I look at the brief
. OF the REALTORS ] am inclined to believe
that they insist on a proposition for which
/ will contend today, which is, that when
the assessment of this property is made to
the railroad companies in the terms which
are set out in section 39 It comprehends
all OF the valuation of railroad property;
that when you take into consideration the
main track, the side track and the rolling
stock denominated as such in that sec
ton, then that the board should. and It is
contemplated by law that they should take
into consideration everything which enters
into the value OF that property.
. But today / am not exactly clear in the
confusion which has resulted from the diff
"a ferent positions which It seems to me they
have taken, whether 1t is claimed that
Q these franchises should be assessed sepa-
" rately or whether they should be simply
considered and the assessment made on
the aggregate value of all of the property.
Perhaps the statement Of my brother Har-
q rington would Indicate that they intend to
stand on both propositions. But before we
8 come to this there are some things which
We mubt COHblNtI IN AglOA VhNO W ~
situation and the duties Of the State
Board Of Equalization.
As 1 read the law, the board is organized
and constituted for certain purposes and
Nr the performance OF certain duties. The
s 5atute defines those duties. Under sec
81 lions 80 and 40 1t 10 to value the railroad
property, and Is not the mere Instrumental
tty which may be guided hither and thither
BY every branch Of the government. but
: b. Is to be controlled by the law which de-
& lines its duties. The law reposes In that
> board a certain discretion. 1t is clothed
q with. a quasi udicial function, and when
2 It enters upon the consideration Of the duty
entrusted to it-when 1t undertakes to
make an assessment of railroad property
1nder the law It has undertaken to exercise
that discretion as Il In imposed upon It by
law, and its decision upon that subject,
after II Is rendered-after II has entered
upon the exercise OF its discretion and has
exercised the functions which are imposed
upon 1t by law Is as inviolable as that
Of any court upon any subject. II there is
fraud in It's deliberations, 1t may be true
that the courts may take cognizance OF 1t
and may compel the board to act again.
It may be that II there is fraud in its
sonduct or fraud inheres in the determine
ton, then the courts may call II back to
perform its duty; but that right even
then depends, in my judgment, upon
y whether or not there Is another
o remedy for the person who seeks to
invoke the power of this court for the pur-
bose Of directing the State Board OF Equali-
ration as to the method OF exercising It's
Judgment. II the law has provided a way
for q review of the action Of that board.
lLen, II there is fraud in that action. and
hat fraud was known, or II the circum-
- -- 81
time when the Judgment was rendered,
. I take II that under the law the remedy
b which is pointed out by statute must be
pursued by the person who has appeared
before that board and sought by evidence
70 influence its action. That applies to
county boards Of equalization, and why
Shouldn't II apply to the State Board of
Equalization? The statute is broad enough
TO comprehend both. 1t seems to provide
and comprehend the idea that a judgment
Of the State Board Of Equalization may be
reviewed upon error by the district court.
Section $50 Of the Code is as follows:
A Judgment rendered or final order made
by a probate court, Justice OF the peace or
h any other tribunal. board or ofhcer. exer-
eialng. judicial functions and inferior in
reversed. vacated OF modified by the dis
triet court.
Then 1t is further provided under the
statute with reference to settlement of q
bill Of exceptions. being the latter part of
section 81. which was enacted by the Iegis-
S~rlature OF 1885. that:
Il Any person or ofhcer or the presiding
ofhceF OF any board or tribunal before
whom any proceeding may be had shall, on
the request OF any party thereto. settle.
assign and allow a bill OF exceptions OF all
the evidence offered or given on the hear
ing OF such a proceeding.
~ Now, then. as l said before. ell Of the
circumstances entering into the making OF
the assessment Of this property was as
well known on the day when the judgment
was rendered by this board as II is now,
or as 1t was on the day when application
was made to this court for the alternative
writ OF mandamus. Knowing these facts,
they could have taken that record into the
district court. and II there was any error
on the part OF this board they could have
had II remedied there; II there were any
set OF facts or circumstances which they
sought to get in evidence which were ex-
cluded by the board Il understand II Is the
' claim OF these parties here that they did
offer evidence and that they were notified
that that evidence would not be eonsid-
sred) then Il was their duty to have APP
piled for a bill OF exceptions from the pre-
siding ofheer Of that board. as provided in