Omaha daily bee., 1902-07-19
RAILROAD TAXATION in COURT
is of Counsel on the Issues Raised in the Mandarin
Case Before Nebraska Supreme Court--R~"X
Arguments

Argument for the respondents by ]. E.
Kelby Of the Burlington law department
IS amicus curiae:
II the court please. ! advantage myself
Of the courteous invitation Of this hon
orable court to present my suggestions
upon the questions that arise upon the
record in this case.
/, for the time being. will lay aside that
yoke Of which my friend Howe writes in
his brief; that yoke about which he must
have learned so much and carried so long
when be was general counsel OF the Omaha
road. and become. for the time being, q
reinfranchised spirit. ] shall appeal to
this court simply upon the process OF rea-
son alone. That was a magnificent dem
onstration on the 14th day OF May last,
when that great cayslcade, composed OF
the general manager Of the public well
fare" OF this state, on the one hand, and
his eminent counsel ON the other, who,
with heads high In the air like a Norman
sped down the halls Of this capitol, went
before the Board Of Equalization and bonn
bastically demanded that 1t assess the
franchises. Did Mr.. slmeral undertake to
tell the board at that time what a fran
chise was? No. Has he undertaken to
tell the court at this time what a fran
chise isl No. He preferred then, as now,
10 prate learnedly about sovereignty,
about the eminent domain power, about the
exercise of a franchise, about its value
being worth 5000, O0O, 600. and left the board
"a he has left the court-in the darkness
in which he found 1t.
That is what SlmeTal and Rosewater did,
and Mr.. Slmeral knows as much today, and
Mr.. Rosewater and Mr.. Howe, and Mr..
HARRINGTON, know as much today about
the nature and inherent characteristics OF
n franchise as the board did. And l have
no doubt that my friend, the good, honest
old Stuefer, when he heard the word SOY"
ereignty, thought It was some sort OF a
gift to the railroads Of this state from
Emneror william or King Edward. Nell
Their Rosewater nor simeral tried to ex-
plain r.. Mr.. Simeral, IN whom reposes all
xisdom; Mr.. Harrington, who has made
a study Of this thing for months and
years last past, and Mr.. Rosewater. who
has runR the changes on this thing for
thirty years. never told the board what a
franchise was; and they cannot tell. They
have not told and will not be able TO tell
this court what a franchise Is.
Ia this not a remarkable proceeding? II
Is an event. It is more. 1t is an epoch.
For thirty long years Mr.. Edward Rose
water. this same custodian OF the pubic
morals and the public welfare OF this state.
has stood by year after year. has seen the
Board of Equalization OF this state make
its assessments relatively to ell other
property, and has never once protested ex-
cept this time. Is the assessment any dit-
terent this year than It was last year
relatively No. Has Mr.. Harrington pro-
tested heretofore7 No. Mr.. Rosewater
protested on behalf Of himself and, IL you
will believe him, for the republican party,
and Il became necessary for the self-con-
stituted representative of the other polit-
zeal party to do likewise; and this they
did. and thus they act In concert SO that
the republican party shall not have a
monopoly Of the protest business. That
"a their purpose. The people OF this state
are not protesting: they are attending to
their business. They are satisfied. They
are not here to protest, They have asked
no one TO protest for them. They cannot
protest, have no cause for protest and do
not protest. This protest is, after all.
nothing but airy persiiage on the part OF
the REALTORS and their counsel. They nave
no cause for protest. They showed and
show no grounds for protest. They are
simply in here for the sake OF stirring up
trouble.
Now, my friend Howe asks me to tell
this court what q franchise is. That is a
dificult thing, but / am going to try to
throw some light upon that much abused
term. II may be that my own definition
will not be satisfactory to the court, as II
may not be satisfactory to my own mind,
which means that the average man, even
of trained intellect, cannot fairly determine
I'm his own mind the component elements
that enter into the thing. Now, Black
stone says that "a franchise is a branch OF
the royal prerogative subsisting In the
hands Of the subject by grant from the
king" Kent, "that a franchise is a privi-
lege conferred by grants from government
and vested in private individuals" Apply
ing these definitions to modern time we
would say that n franchise may be a grant
conferred by government through the
legislature on bodies corporate or in
dividuals.
Now, II your honors please. 1t is con-
celved that there are two kinds OF fran
chises and those may be denominated
primary and secondary. A primary fran
chise may be said to be that which In
heres in the act OF becoming a corpora
ton, In the right or privilege of becoming
an artificial entity. A secondary franchise
is e grant unto the body corporate or &c
the Individual which in its nature Is prop
erty per Sc.
A franchise may be conferred on an indi'
vidual as we'll as a corporation, for Ger
tainly there is nothing in the constitution
or the laws OF this state which prohibits
the legislature from comforting grants upor
individuals; and section / OF article II
Of our constitution seems to contemplate
that individuals as we'll as corporation
may own, enjoy and use a franchise. Tit
very words used In that section denote tina
proposition as "all persons, properties anC
corporations shall be taxed in proportion
to the value OF his, her or Its property AM
franchise" Now II there be reason ant
philosophy In the law land we doubt no
but there are) the franchise which l hav
denominated primary is a grant which vest
in the individuals OF which the corporate
entity is composed, 1t is a perpetual gran
to them and not a grant to the artihcia
entity. The best proof OF that fact I
that the corporation itself by no deed o