Omaha daily bee., 1903-02-19
MUNGER NAY DECIDE FRIDAY
Argument for Railroads Temporary Ipjunc-
ton is Concluded,
UNIT ASSESSMENT THE CONTENTION
CorporatIons' Attorneys Affirm and
Mcintosh Denies Right Of state
Board TO Dictate Extent Of
omaha Participation.

At the conclusion of the hearing Of the
applieation OF the Union Pacific and Bur
Ilngton railroads for a temporary injunction
restraining the city ~oficials OF Omaha from
making the tax levy for the year 1903
Judge Munger, I'M the United States cir
cult court yesterday afternoon announced
that be would render a decision In the mat
ter Friday morning II his opinion is to be
oral. II ne concludes to file a written opin-
ion IT, win not be rendered until Monday
morning. be said.
The Of the counsel for the
railroads and the city consumed the entire
day. and, aside from outlining dimly the
positions which will be taken by the con-
tending forces, was of little public interest,
as the question before the court early came
down. 10 tine point where the city commended,
for the purpose OF defeating the temporary
Injunction. that the railroad companies had
fled their complaint prematurely. while the
companies. for the same purpose maintained
that they had acted in good time only.
Indicates Courts view.
That this point will be the chief one con-
sidered by the Judge was indicated by hts
remark TO attorneys for the railroad during
the afternoon, when he said: THE only
question strongly urged by the city is
whether you have OF have not acted prem
aturely-whether or not you have waited
until after the tax was levied"
While neither side presented it's argument
on the main issue fully, enough was said
to show that MIR. Mcintosh expects to at
tack the oonstitutionality Of the law Civ
ing the State Board Of Equalization power
to assess the railroad property as a unit,
and that the attorneys for the railroads will
maintain that the constitution practically
places no limit upon the power Of the leg
~islature, and that the provisions of the con-
s~titution referring to equality OF taxation
have no binding effect upon either the leg
~islature or any board 1t may create beyond
the equalizing Of taxes between property
of a similar class.
The morning session vas taken up by
Ralph w. Breckenridge. W. J. Connell and
John N. Baldwin. Mr.. Breckenridge dwelt
at length upon the merits of the case.
Argues for the Darlington.
He insisted that the action now brought
by the railroads IL to avoid a multiplicity
OF suits. ~as action might be brought later
to restrain the collection of the taxes, or
to force a restoration after they had been
paid under protest, but he believed less
damage would result to sill parties con-
cerned by this action. The authorities he
quoted we're all In line with the PROPOSE
tion that the unit system of taxation is the
only fair and equitable one for railroads.
Mr.. ConneI. in his argument, urged that
the action of the railroads upon their plead
ings is premature, as 1t is not shown by
the bill that the property OF the roads is
TO be damaged or taken by the city au-
thorfties. and that the assessment does
no damage to them. because, II 1t is
void, as they maintain, they have ac-
lions at law to set the levy aside, and
no damage can be done anyone by a
void levy or assessment. He said the
Injunction, IL issued. would place the city
authorities in a difficult position. as the
funds are limited by specific amounts, SO
that II the mayor and council make the
levy upon the basis asked by railroads
and Il is afterward found that the conten-
tion OF the city is correct, IL will be Inn
possible to make a levy of the correct
amount upon the railroads, as all funds
will be hlied to their legal amount and the
railroads will escape taxation in that de-
gree.
John N. Baldwin, for the Union Pacific,
devoted himself almost exclusively to citing
cases dealing with the issues of this case,
waving aside the contention OF the city
attorney as TO the prematureness Of the ac-
ton. He said that IL the contention Of the
city is correct the railroads will have to
contest the collection of taxes In every
county Of the state, as they would have al
ready paid a large part Of that tax in
Omaha. When his argument had concluded
the court adjourned for noon.
MeIntOsh shows the Dinerence.
Mr.. Mcintosh opened the argumen at the
afternoon session. He began by calling at.
tention to the great discrepancy betWeer
the amount OF tax paid by the railroads
upon property in omaha and the amount
paid by other people owning property O
equal value. He then said that of the easel
cited by Mr.. Baldwin none came under tn
peculiar terms Of the Nebraska c~onstitu
tion. one section of which provides that tn
legislature shall not remit or reduce tn
taxes due the county or municipality, AM
that when the legislature. through tn,
State Board Of Equalization, undertakes Il
distribute the value OF the property fl
Omaha or any other city over the entir
mileage OF the road it attempts to do al