Mahlon Pitney

“ There is nothing before us to show what decree, if any, was made by the District Court upon the going down of the mandate, beyond a mere order of reference to the master. The final decree made upon the confirmation of his report says nothing upon the subject of the occupation tax ordinance. ”

“ Upon final hearing the court, by decree entered April 6, 1909, dismissed the bill as to the rate ordinance, without prejudice to the commencement of a new action, but decreed that the ordinance levying an occupation tax violated the Constitution of Nebraska and was for this reason illegal, and granted a permanent injunction against its enforcement. ”

“ And, thirdly, the argument based upon the master's finding as to the return that complainant would have earned in the year 1907 under the prescribed rates is vitiated by the fact that he included as an operating expense $4,466, the amount of the estimated occupation tax, which was not paid and (as we shall see) has been conclusively adjudged in this suit to be unenforceable. Eliminating this would increase the net return for the year approximately 1 per cent. upon the investment. ”

“ Cas. 1034, 48 L. R. A. (N. S.) 1134. When those decisions were announced this case was pending in the Circuit Court, and shortly thereafter it was decided adversely to complainant upon the question of the validity of the rate, the Knoxville and Willcox Cases being cited. 182 Fed. 926, 929. Then, if not before, complainant might have made a practical test of the sufficiency of the rate, instead of waiting six years longer before doing so. The litigation has been extremely tedious and burdensome to both sides, and it ought now to be brought to a conclusion upon the record as it stands. ”

“ In abridged form, it occupies nearly 2,000 pages of printed transcript in this court, besides numerous tabular exhibits. It would be impossible, within reasonable limits, to recite the substance of the evidence or review the master's findings. We do not feel called upon to do this. ”