Omaha daily bee., 1902-03-11
POWER OF SUPREME COURT
City Attorney Will Question It in Tax
Mandamus Case.
ARGUES THAT WRIT SHOULD NOT ISSUE
Contends that Corporations Cannot
he Assessed Mt Fair Cash value
Will other Property Is
"a. Not So Assessed.

Judge Robert Ryan, the supreme courts
referee before whom will be heard the tax
mandamus case, arrived in the city from
lincoln yesterday, and. after registering
at the Her Grand hotel, went at once to
the office of Attorney j. II. Mcintosh In the
New York Life building, where he had a
conference in reference to the room in
which the sessions are TO be held.
1t was decided last night that, as the
subpoenas issued by the clerk Of the court
had called witnesses to assemble at the
New York Life building, the referee would
call tho case for hearing there at 10 o'clock
this morning and adjourn to the rooms Of
the Board OF Education on the fifth floor of
the city hall, where the hearing will be con-
tinued.
The hearing will begin before Judge Ryan
ut 10 O'Clock Tuesday morning, and the first
point to be passed upon will be as TO the
power OF the court TO issue a writ OF man
damus requiring the city council to recon-
Tens as a board of equalization.
In the supreme court, before the appoint
ment of Judge Ryan as referee, Mr..
Cornell submitted a motion in which he
maintained that the supreme court had no
power to control the discretion OF the mem
bers Of the city council by writ OF man.
damus. without passing directly upon the
question involved in the motion, the court
appointed Judge Ryan and referred to him
all questions of law and fact. The city at
torney now takes the position that when
the case was referred to Judge Ryan the
question raised In the motion went with
the appointment and that the referee will
have to pass upon It. The attorney for
the compIainants will take the position
that In the appointment of Judge Ryan, the
court assumed Jurisdiction OF the case and
settled all points raised previous to the
appointment OF the referee, except those
involved In the issues of the case.
The city attorney also raises the following.
point:
The court should not grant a writ of
mandamus to assess said properties Qhe
corporations) at their fair cash value while
other properties are only assessed at 40
per cent OF their fair cash value.
A lawyer who has followed the case
closely. and who is supposed to be Impair
tial, had this to say on the subject: II
don't think Mr.. Cornell will win out on this
contention. The fact is that the charter
says property in Omaha shall be assessed at
ITS fair cash value, but it never has been
assessed at more than 40 per cent Of It's
fair cash value. That has been the custom.
30 it's a case of law against custom. Now,
suppose the referee would say. Well have
20 assume that these people out in the sub
nrbs who own their homes have been as
pessed according to law. that they have been
paying taxes on a fair cash value assess
ment, and so we'll have to hold the cor
porat1ons TO the same rule That would
be a very natural position for the referee
TO take, so / shouldn't be surprised to see
Council drop that phase of his argument"
Mr.. Mcintosh said: 81 presume the en-
tire first day of the hearing will be devoted
70 an investigation of the courts power in
the premises. II Mr.. Connell's motion is
Sustained the hearing will end then and
there; II he Is overruled we will begin with
the hearing OF evidence. The first point
then TO be determined will be whether the
real estate men really did have an oppor-
tunity to present their cases before the
council. sitting as a board Of equalization.
II It is found that they did not then the
ease will be opened up In all OF its phases"
Mr.. Connell said: ''There has nothing
new come up In the case since 1 was last
quoted in the newspapers and all I have to
say is that I will be ready to go ahead to-
morrow morning and that / shall make as
rapid Roadway as possible"
tt question Of the Intervention of the
public service corporations has not been
decided, although the attorneys of two OF
these corporations have stated to the ref
cree that they will not intervene at this
time. This decision Is subject to change,
however. as there is no time specified after
which an interested party may not inter-
vene. It is also probable that much OF the
testimony will be in before issues are Joined
In the case, as the city attorney was given
ten days IN which to file an amended an
Bwer with the understanding that this leave
was not to interfere with the hearing. The
time for filing the answer will not expire
until Saturday and by that time a large part
of the testimony will have been heard.
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