Omaha daily bee., 1903-01-17
RIGHT TO TAX RAILROADS
City Attorney Holds that Valuations by
State Board Are Not Binding.
LOCAL BOARD HAS POWER TO EoUALlzE
Mr.. Council says Uniformity Of Taxa
tIon IL the Ruling Principle aud
the Intent Of the Com
stitutiOn.

Equalization City Attorney Cornell filed his
opinion. in which he unqualihedly afirms
the right Of the tax commissioner and Board
Of Review TO assess the railroad companies
as they have, and declares that II they had
not done so 1t would be the duty of the
Board OF Equalization to do so. The opin-
ion says:
The proposition submitted to me. as l
understand 1t, relates TO the right ana
power Of the council as a board OF equali-
cation TO bring the assessment Of railroad
property for the purpose OF municipal tax
alton for the year 1908 to the same standard
adopted and followed in the determination
Of the assessed value Of other property to
be taxed for the same purpose.
As required by law and under the rule
adopted by the tax commissioner and Board
Of Review for 1903, all property was as
sessed on the basis Of its fair value. Inc
controversy now before your honorable
board, like other similar reforms, involves
difficulties. Action is necessary TO be taken
on the law as II exists and not on the law
as IL should be. In considering the law and
solving difficulties one principle should be
constantly in mind, viz, uniformity of tax
alton. This principle is recognized in the
constitution and presumably Is intended to
be recognized in enactments OF the legls-
lature.
While I endeavored to sustain the action
of this honorable board in the controversy
Of last year II was on the ground that a
hearing had been granted to the complain
ants and the matters In dispute had been
and have always claimed that the true
basis for the valuation of property for mu-
nicipal taxation was at it's fair value IN
accordance with the expressed requirements
OF the statute and not 40 per cent of such
value. IL this rule was followed and APP
piled to all property alike, uniformity Of
taxation would be secured. Unfortunately
a different method Is provided i'm the
charter of metropolitan cities for de-
termininG the valuation and assessment OF
railroad property than Is provided for the
determination OF the value and assessment
of other property. This difference brings
Oh the controversy now existing.
Must Not conflict with Constitution.
With reference to the assessment of the
real and personal property and franchises
within the city belonging to persons, part
nerships, associations and corporations, not
exempt by law from taxation, the tax com
missioner and his deputies are required to
assess and value the same at their fair
cash value With reference to railroad
property, the tax commissioner is required
to take the valuation and assessment Of
same from the returns made by the State
Board of Equalization to the county clerk.
other sections or the charter provide for
the holding of a board OF euualization by
the council for the purpose OF equalizing
all taxes and assessments. l consider
that these several provisions should be
considered together and should be 50 con-
strued that they will harmonic, If pos
Bible, and at the same time not be In
conflict with any provision of the constitu-
ton. The constitution (Section !, Article tx,
provides: The legislature shall provide
such revenue as may be needful by
levying a tax by valuation. so that every
person and corporation shall pay a tax
~ pANBNNNph " ~ Ne.NS - h"i - "
its property and franchises, the value TO
be ascertsined in such manner as the
legislature shall direct"
TWO things are made prominent in the
foregoing provision of the constitutions:
J. THAI every, person shall pay a tax In
pTopCIuOI. 80 the value of his property
2. That such value shall be ascertained
in such manner as the legislature shall
direct.
state Figures Subject to Review.
1t is claimed that the legislature has
directed that the valuation of railroad prop
erty shall be ascertained by the State Board
OF Equalization. l do not consider this
claim correct. 1t is true the legislature
has directed the tax commissioner to take
the valuation and assessment of railroad
State Board of Equalization to the county
clerk, but as / view the matter, even
would be subject to review by this board
as well as the assessment of the property
of other persons and corporations which
tax Commissioner and his deputies at its
fair cash value. No other construction
would result In uniformity of taxation; no
other construction would give force or
vitality to other provisions OF the charter
Vesting in the council as a Board of Equali-
cation the power to ''equalize all taxes and
assessments" and to correct any errors
in the listing of valuation of property.
The alternative writ OF mandamus Issued
In the case of State ex rel Shriver ct al.
against karr ct al. was construed by the
mand to investigate values and equalize
the assessment Of property so that the cor
porations complained of shall pay a tax
In proportion TO the value of their prop
erty and franchises.
At this point Mr.. Connell quotes from
the opinion of Judge Sedgwick in the
Shriver case and comments on the same.
Local BOnrd Has Jurisdiction.
Continuing, Mr.. Connell says:
AS the result of my consideration in
this matter, / am OF the opinion that the
council now sitting as Il board of equali-
cation has the right and power, after
giving notice to the railroad companies, to
bring the valuation and assessment of all
railroad property within the corporate linn
its of the city of Omaha up to the same
standard of valuation as Is applied to the
assessment of property OF individuals and
other corporations. l regard this as cor
rect, without reference to whether the
valuation of railroad property now before
the board as by the tax COM
missioner apd Board OF Review was taken
from the returns made by the State Board
of Equalization TO the county clerk or de-
termined by the tax commissioner ana
Board of Review. If the method of taking
such valuation from the returns made by
railroads TO pay a tax IN proportion TO the
value of other property, then IL Is clearly
unconstitutional and void; If such pro-
vision is not consistent with other existing
provisions of law, so as TO make railroad
property the subject OF equalization by
this board so that il will bear its proper
proportion TO other property, then, for such
reason also. il would be demonstrations
and void.
/ believe It is very important and de
sirable thg such legislation should be Sc
cured at lnc present session of the legis
lature as will harmonize these doubtful