Omaha daily bee., 1902-07-15
Argument

iators:
II your honors please. in presenting to
the court the argument, so far as I am
concerned, 1 desire briefly to 60 over some
OF the salient points in the testimony and
I will also present what the REALTORS be-
lieve to be the law governing this case.
In the first place. | might say that when
the brief Of the REALTORS was in the hands
OF the printer, or at least part Of it. and
almost all OF II had been written, we
we're met by the second answer of the
respondents, which they say changes ma
terially the issues Of fact to be determined
IN this case. The only question, which
was one Of law, as the case originally
stood, was whether or not under section
80 and 40 Of the revenue law the words
railroad property included everything
pertaining to OF belonging to a railroad, be
that property physical, tangible, intangible,
corporate stocks, = bonds or franchises.
Therefore, we devoted our attention so
far as the law was concerned to showing
that under sections 80 and 40 1t was the
duty OF the board TO value the railroad
property as a unlt-to value II In all Of It's
factors, taking into consideration not alone
the physical property, but also the in
tangible property and the franchise. That
a railroad must be taxed as a unit is
virtually conceded by the briefs Of coun-
sci for the respondents. They now raise,
and / believe II is a question Of law, the
question whether or not the franchise can
be taxed separate and apart from the
tangible property. AS 1 said In our first
brief and in the answer, the question was
whether or not under our law railroad
property included the franchise. II now
comes dow to the question whether or
not the franchise is such a piece Of prop
erty pertaining to the railroad that II It is
omitted the court will require the board to
reconvene and assess II.
/ care not what counsel may call this In
tangible property-this franchise. BY some
decisions 1t ia called intangible property
a tax upon intangible property. In others
1t Is designated as a tax upon the fran
chise. So that now we propose to show by
the authorities that II is the duty OF the
board to assess the franchise as such. In
their second answer to this writ respon-
dents say that all the property was assessed
by the board as q unit-as a going concern
but we fnd by the testimony Of Mr.. Wes-
ton, the auditor, that they did not consider
the franchise at all. We claim that a fran
chise Is as much a separate and distinct
piece OF property, Is as much Of an entity.
although intangible, as would be the depots
and terminal facilities, and had this board
In Its session in May last eliminated en-
tirely all the terminal facilities of these
railroads. all the property that they owned
In Douglas county. and we had shown II to
be worth millions Of dollars, undoubtedly
the court would have ordered them to re-
convene and assess that property. So here
today we say that they have omitted the
most valuable portion OF this railroad prop
erty throughout this state. that by failing
TO assess the franchise they have omitted
the life Of the railroad. its very existence.
Its very power. and they should therefore
be o.dered to reconvene and assess that
property called a franchise.
Our constitution provides in so many
words that the property and franchises OF
corporations shall be assessed. Another
provision Of the constitution, and In the
a amt article, provides that no property
shall be exempt from taxation; therefore
franchises must be assessed. AS Ia
whether or not a franchise is a separate and
distinct piece OF property which is assess
able ] shall first refer to the case Of the
Southern Railroad company in Kentucky
against Gust @. Coulter. decided June II
OF this year. I do not suppose It has beer
reported in the Southwestern Reporter, but
. j sent to the clerk Of the court OF appeals
OF Kentucky and have here a manuscript
copy Of the opinion. l might say before
reading from this opinion that in Kentucky
they have two separate boards, one Of the
boards assessing the physical or tangible
property Of the railroads and other corpor'
Rtions and the other, which meets there,
y after, assesses the franchises OF these vari'
Gus railroads, deducting from the tota
value OF the roads the amount Of the as
eessment made by the previous board
thereby getting at the value Of the fran
chise. This opinion was delivered by Chile
Justice Guffy and this decision was baset
upon taxes which had been assessed for fou
years back. from 1896 to 1900, so that tn,
board OF assessors In that state went bacl
and assessed the railroads for that whicl
they had not been assessed for p~reviou
years. When the railroads said, "Why. yo'
have nc business to assess US for pas
years." their answer was. You have ha
the value OF the money and got interest o.
81 and now you have to pay the taxes" !
the board here should do that think tn
Vtate debt might be paid on, Among othe
things this court says:
There is some evidence introduced by ap
pellants Chat Is the railroad companies
attempting to show that they did not TAX
into consideration the value OF the fran
a chise, but We are not inclined to the opin
that the commissioners aid in fact AK an,
larger value upon the roads than II the,
had not thought OF the franchise.
90 How applicable that is to this case an,
the testimony OF Mr.. Weston.
Some comment has been made In regar
10 the apportionment OF the tax in proper
tion to the length OF the road or line in tn
county. However, II is manifest that tn
intention OF the legislature was that thi
tax should be certified to the subdivisio
In proportion to the mileage without an
regard 70 any other question, and such rul
10 manifeetly equitable, for, while IL Is tru
that the tangible property OF the railroad
diner in estimates, yet the franchise doe
not. For instance. take the tangible PROF
erty Of the road In franklin distance {
ten miles OF the track toward Louisville
the total value of the tangible propert
would be worth much more than the te
miles OF the tangible property further oil
but the franchise of the last named te
miles Is worth as much as the Franchise
the hrst named ten miles, because n
whole OF the track Is necessary 90 mah
the franchise OF any appreciable valu
Hence IL follows that the manner OF cert
flying the value Of the franchise as r.
quired by the statute Is Just and reason
able.
refer to that for the purpose OF show
= ing that after that decision they assesss
the franchise as something separate ar
apart from the tangible property. But thu
Is not the only decision upon the questio
might cite a great many, but l hay
taken but one or two more. l now ref
70 the case OF Porter against Rock IslaI
a 81. Louis Railroad Company. 70 ILL.,. So
whose syllabus covers the whole questic
am now discussing:
..ARN