Omaha daily bee., 1903-02-24
RAILROADS GET INJUNCTION
Judge Munger Restraints City from Taxing
Union Pacific and Burlington.
SAYS THE RECENT ASSESSMENT IS VOID
Court Holds that Power of EqualiEa-
ton Does Not Give Authority to
Assess-Statement from city
Attorney Conneil.

Judge Munger yesterday issued a tenn
porary Injunction against the city council
and taxing authorities OF the city restrain
ing them from making a levy upon the
property OF the Burlington and Union Pa
cihc railroads on the basis OF the assess
ment returned by the tax commissioner and
the Board Of Review.
In his opinion the Judge says the two
cases presented so nearly identical condi-
lions that one hearing determined the rule
in each; that II appears that the tax COM
missioner did not follow the provisions OF
the city charter in accepting the assess
ment as returned by the state board. Re-
ferring to the unit system Of taxation he
says It has long been the statute law and
has received judicial sanction, not only by
the supreme court OF this state. but by the
supreme court of the United States. The
Judge quotes the decision Of the Nebraska
supreme court in the case Of the state ex
rel against Savage. In this case the SUI
preme court said: we know OF no rule by
which the state Board Of Equalization under
the present law can value railroad and tele-'
graph properties in municipalities having
taxing powers Of their own at a uniform
valuation with other properties therein,
when the standard Of value is different from
that prevailing under the general revenue
laws"
Judge Munger, commenting on this rule
in his opinion, says:
"This language Of the court gives some
force to the contention OF counsel for re-
spondents, but IL will be observed that the
court is only speaking Of the standard Of
value, and in no manner questions the
method of ascertaining the value upon the
mileage basis. II, for instance, the stand
ard Of value Of property for general revenue
purposes throughout the state was fixed at
one-half OF Its actual cash value, and in
cities and municipalities the standard of
value for local taxation Is fixed at its full
or cash value, then Of course the assessment
Of the state board on a basis Of so per cent
should not be accepted as the final basis OF
value for municipal purposes.
Powers of city Council.
THE charter Of the city provides that
the city council shall sit as a board OF
equalization, when 1t shall hear and de-
termine and equaIize the value Of property
between individual taxpayers. II It shall
appear TO them when sitting as such
board that the assessed valuation of one
persons or corporations property has been
made upon a basis of so per cent Of Its &C
tual cash value while the property Of an
other individual or corporation has been
assessed at 100 per cent, or its full cash
value, they are empowered to remedy this
inequality by raising the assessment OF
one or lowering that Of the other to an
equality.
Blu the power Of equalization does not
give the authority to ASSESS. I am clearly
Of the opinion that the alleged assessment
and valuation OF the complainants' prop
erty in the manner alleged was wholly
without jurisdiction and void, and that the
city council, not having changed the as
Bessment when sitting as a board OF equal
iEation, has no power or authority to as
sess the property OF compliments at an
other or different valuation than that fixed
by the state board, and that a tax levied
upon the assessment as returned by the
tax commissioner and Board OF Review
would be void.
"a party 10 not required to pay a tax
which, as yet. has no existence. II a tax,
when laid, may be enjolned because Of its
illegality. then a court OF equity may en-
Join the levy OF such tax.
For these reasons a temporary order OF
injunction will be granted, restraining the
city council from levying a tax upon the
assessment as returned by the tax COM
AAN anu Wv bOaAu " ANNMt0N db u
the property Of the complainants assessed
by the state board"
As TO Personal Property.
The court then takes up that part Of the
complaint Of the Union Pacific relative
TO the increase in the assessment of the
personal property of that road by the
Board of Review over the valuation as
returned by the tax commissioner, and
says:
"As II is charged in the bill that the
Board of Review raised the assessment
without any notice to complainant, and that
they acted fraudulently and raised the as
sessment six times above that of other
property, the temporary injunction will be
granted as to that"
Referring to the injunction as to the
property OF the Union Pacific other than
that returned by the state board, a member
OF the last Board Of Review said that tho
board had notified the Union Pacific OF its
Intended action. and that the company
failed 10 appear. This question was not
touched upon in the argument before the
court, as the city had filed no answer, and
for the purpose OF the argument the allie
cations OF fact In the bill had to be taken
as true,
CITY Attorneys Statement.
City Attorney Cornell said: THE effect
probably will be a levy made on the theory
that the final decision will be in favor OF
the city. This will mean that a shortage
will exist In some Of the funds for the
various departments. but this condition will
have TO be met when It is reached. The
council will undoubtedly make a levy in ac-
oordance with the action taken by tho
court, and obey the order restraining a
levy on the railroad assessments as re-
turned by the Board OF Review and the
Board of Equalization. They will make a
levy on all property except the railroad
property concerned. with the expectation
that It win be reached later by a supple.
mental levy"
Judge BerkR's busy Day.
A new record was established I'm the no.
lice court yesterday by Judge Rerka.