Omaha daily bee., 1902-06-18
| ANSWERS The STATE BOARD
Attorney for Building Company Files Brief
in the Assessment Case.
TAKES UP ANSWER OF THE RAILROADS
Argues That Franchise Has Not Been
Assessed and that is Most VAL
uabIe Portion of the Rail-
road Property.
tFrom a star Correspondent

- 1N1@AA VI - ~ 1a6
the mandamus case against the State Board
OF Equalization were filed in the supreme
court today by Attorney E. w. Simeral OF
Omaha. This case has been ordered for
argument at a special sitting Of the court
on June s, but leave has been given all
litigants to file briefs or printed argument,
in addition to the oral argument.
The brief begins with a citation OF that
section Of the constitution which author
ICES the legislature to provide for such rev.
enue as may be needful by levying a tax
in proportion to the value Of his or her
property and franchises, the value to be as
certained in such manner as the legisla-
ture shall direct. Attention Is also directed
to that section which declares that the
legislature shall have no power to release
or discharge any county, city, township
town or district whatever, or the inhabi-
tants thereof, or any corporation, or the
property therein from their or Its proper
tionate share OF taxes to be levied for
state purposes, or due any municipal cor
poration, nor shall Communication for such
taxes be authorized in any form whatever
Mr.. Simeral argues that 1t necessarily
follows fran these sections OF the constl-
tuition that the legislature would have no
power to exempt from taxation the fran
C0lHGb OA IdllOah WI PSA -
that had the legislature provided by stat
ute that all property Of the railroads shall
be taxed, naming therein every item that
is set forth in sections 80 and 40 Of the
revenue act, with a proviso that nothing
therein contained should be construed as q
mower on the part Of the board to tax the
franchises Of the corporations, undoubtedly
such a statute, in so far as 1t exempts from
taxation the franchises would have been
unconstitutional.
Fr~anchises Are Included.
1.-THE legislature cannot do indirectly
what II cannot do directly" declares Mr.,
simeral. Therefore, as the franchise oil
the CORPORATIONS is as much a part Of rail-
road property as the engine or rails II
| follows that the state board should take
the same into consideration in assessing
railroad property as provided by sections
80 and 40.
For the purpose Of taxation as pro-
yided by the constitution and laws Of this
state. what is meant by the term 'roadbed,
ties, etc, certainly Is not the tangible
property alone but must embrace the stocks
bonds and franchises or the Intangible
property as we'll. The statutes OF many
OF the states which have received judicial
construction, through the state and federal
courts, are at the furthest but best evil
dence to prove the value Of railroad prop
erty. Evidence OF which, IL not volun-
tarily furnished, the auditor Is empowered
to obtain for the purpose OF assessing al
the property Of the railroads"
After citing numerous authorities OF
methods for ascertaining the proper values
for taxation, Mr.. Simeral continues: The
first answer OF return Of the Board oil
Equalization was a fair. honest and manly
one. II. was the answer of a millior
people. It told the truth. 1t did mo-
please the railroads. Upon their demand
another answer was made. The railroads
in a suit to which they were not parties
prepared a second answer. They usurpec
authority OF the State Board of Equaliza'
ton. All that has been said in this ar
gument regarding the abuses OF the people
by the franchised corporations is JUSTIFIED
by this single act. In the face OF thii
shameless performance who can doubt tina
it is time for open revolt by the people
The case was practically submitted to thu
court when the order for serving tn
printed arguments was made; only TIT
question Of law remained to be argued.
Switching of
"The first answer says that the board
met to discharge the duties devolved upoI
It by law; that a part Of the companies hat
reported their lists; and that the board as
sessed all Of the tangible property Of salt
corporations at an amount which, In tn,
judgment Of the respondents, sitting an
acting as such board, seemed to be Just ant
adequate and In proportion to the assessed
valuation OF all other property in the stat
of Nebraska The answer next says tina
on the 14th day Of May the relator mad,
demand on respondents while sitting a.
such board that the board assess, in add
tion to the tangible property, the franchise
Of said corporations. which the respondents
acting as such, board, refused to do for tn
reason that under the statute creating
such board and defining its powers, 1
doubted its right so to do
The second answer is a curious Attemp
by shrewd lawyers to negative the Who'll
Of this first answer, It says that all tn
companies had returned their reports; an
that the board did assess all the proper
ties in the manner required by law. But
it says, said respondents did not believ
that under the law they had authority t
value and assess extra corporate fran
ohises Of said companies separately an
apart from their tangible property; tina
they assessed all as unit, and further den
every allegation not specifically admitted
denied or otherwise admitted. The snswe
then submits that the board performed 1t
whole duty In the matter OF making sal
assessment.
THE second answer Is so preposterou
that It may as we'll be ignored. Most c
this argument was prepared before it ap
peared. but II is just as pertinent as be
fore for the simple truth is that the fran
chise was not assessed. Truth is might
and will prevail. Tho railroads have over
leaped themselves. They have made tn
board turn a double somersault in the yer
face OF all the people. Whom the god
would destroy they first make mad. The
have put the board in the attitude Of say
ing that when they hled their first answJ
they did not know that they had done the.
duty"
The brief includes citations from author
tiles on the railroad franchise. which az
followed by this argument; "The foregoin
show in what ways foreign railroad col
porations may derive property, powers an
franchises under tht laws Of this stat,
Under these laws and certain practices
the railroads hava huflt nm an anuira