Omaha daily bee., 1902-03-12

In referring this case 70 a referee. How
ever. the scope Of our inquiry will DO very
narrow. ] don't think It Ia within the
province OF the supreme court to say at
what rate the board should assess a certain
piece Of property. That is for the board TO
determine. The great question in this case,
perhaps the only question. is. Did the board
act so arbitrarily as TO exclude certain per-
sons or interests from a hearing?'
Attorney w. w. Morsman Of the tele-
phone company said; THE purpose Of the
supreme court was to take up these pre-
liminary questions first, thinking that per-
haps the case could be disposed Of upon
them alone, without having to drag in the
great mass Of matter that would be con-
tingent upon the hearing Of testimony aud
the examination Of books and records"
II think It is pretty generally under
Stood said Mr.. Connell, that the pur-
pose Of the supreme court was that we
should not go into questions Of fact, but
that we should settle this case upon ques-
lions Of law"
He then read his motion that the APP
plicstion for the writ OF mandamus be de-
MED, and afterward spoke in support OF
It, as follows: "Mr. Mcintosh asks that
the property of the street railway company
be assessed at 40 per cent Of its fair cash
value, which is In violation OF law. And
how does he propose to ascertain that
value7 He wants the company's books
brought in, that he may learn how much
1t cost to build this line and that, how
much was expended for repairs and like.
But how does the law say this shall be
done? Does the law say anything about
bringing in the books OF this corporation?
No, It provides a tax commissioner for
that purpose. Therefore, 1 say the appti-
cation should be denied because It seeks
to bring about something that is Illegal,
and seeks to control the discretion of the
Webster Acknowledges the Corn.
John L. Webster urged corne as his ex-
cuse for sitting on one end of the counsel
table to address the referee.
The sitting Of the city council as a
board OF equalization was advertised in the
official paper Of the city" said he, and the
concluding paragraph OF that advertisement
expressly says that all complaints shall be
in writing and be filed when the board
begins its session. This means that no
complaint could be filed after the board
convened. The council convened as a board
OF equalization January 10. There were on
file eighty-eight individual complaints by
members Of the Real Estate exchange, and
William G. Shriver had signed eight of
them. Shriver was there; so was Mcintosh.
1t was a hearing In which all participated
and acquiesced. II they didn't have a hear
ing. why didn't they make 1t known there
and then? This complaint made by Mr.. Nc
Intosh Is the same as was presented at
that time. The phraseology may be a little
different. The words other taxpayers sim
ilarly situated have been inserted in this,
but 1t Is Mr.. Shriver'e complaint just
the same. Shriver will gain $3.50 IL this
writ is granted. As to Morton, there isn't
a dollars worth Of property assessed in his
name In this city.
They had their hearing on Friday, jan
uary IL. It's no defense to say they didn't
present any evidence on hat date. That's
not the fault either of the board or OF
the corporations. They were defeated once
and o they want to come In and try II
again; that's the position they are In.
What is the purpose of this hearing? II
is TO have a higher appraisement Of these
corporations placed Upon the assessment
rolls-that is the gist and the pith OF it all
all the rest is surrounding shrubbery. And
IL the terms of this writ as asked for are
complied with 1t will require the council
to do an illegal act"
Authorities on Mandamus.
Mr.. Webster quoted nine American state
supreme court cases and two English cases
the purport OF which were to show that
the peremptory writ must always follow
the alternative writ, and that the relatoI
must be entitled to all the relief he asks