Jamestown weekly alert. [volume] (Jamestown, Stutsman County, D.T. [N.D.]) 1882-1925, 1894-06-28
INJUNCTION DISSOLVED.
Judge Rose Holds that the
City Council can Build
a Sewer.
Legal Arguments in the Case
Rights Of Those Injured
The City Debt.


Judge took in consideration at all was
whether the issue of bonds was IN viola
ton of law, the plaintiff claiming that
the city debt and school debt taken
together made more than the amount the
city was entitled to owe. The defendant
(the city claimed that the city and
school board were two distinct corpora
tions, and the debt of the city was but
$4,000, and the charter provided that
$4,000 indebtedness might be issued
without vote. Judge Rose held that
the clty's views were substantially cor
rect.
1t was held by the judge that the
plaintiff being injured had no right to
bring an injunction to restrain nus-
ance for the reason that the work being
authorized by law, the courts have held
uniformly that what has been author
lied by statute cannot be termed
nuisance" and thai whatever special
injuries he has received, he has an ade-
quate remedy at law
1t has been understood that Mr.. Klaus
has been notified to sign the contract for
the work, and that it will begin soon.
Attorney Camp, representing contractor
Anton Klaus, yesterday presented the
case OF the city on the sewerage question
matter, answering the various objections
of the plaintiff as filed in the complaint.
He said that it was we'll established
law that a city council in planning a
sewerage system-size of sewer, course,
etc.--acts IN judicial capacity and their
action cannot be reviewed by any court.
Their action is final and adverse individ-
ual judgement cannot be maintained as
a plea. II the expense is within con.
stitutional limits, whether the work is
wise or foolish, is for the council alone
to determine, not individuals or courts.
He also stated that Mr.. Warner, the
plaintiff, does not alle9e or intimate IN
his complaint that his property is liable
to taxation for sewerage purposes.
City Attorney Baldwin introduced an
affidavit, read by Attorney Camp, stating
that the bonded indebtedness of the
city was but $4,000 instead of S65,0OO
rs alleged by the plaintiff; that the peo-
pie have voted in favor of sewerage; that
contract had been let to Klaus for S4,-
997S4, and no more; that the only resi-
dence within 1000 feet of the mouth of
the sewer is that of the plaintiff; that
the debt does not exceed the coustitu.
tional limit; that the river is large
enough to carry away all sewerage de-
posted in the river, etc., etc.
Continuing, Mr.. Camp argued: City
and school district are two sepe1ate
corporations, constitution allows any
city to bond itself to per cent. of tax
able property for sewerage purposes,
regardless of other indebtedness. Plain
tiff alleges that the river Is dry most of
the year. There Is more water running
now, IN dry season, than would come
from ten artesian wells, and not within
the past sixteen years has there been
less water in the river than would flow
from the city we'll when turned on full
head. The peculiarly of the complaint,
elucidated to the court. wherein he
alleges that the river is dry the greater
part Of the year, and then states that the
emptylng of the sewer there would pre-
vent him from there watering his stock.
By act of Legislature of 1898 cities were
allowed to use rivers in which to dis
charge sewerage, below dams. He main
tanned the proposition, that that which
the state has expressly authorized can
not be deemed nuisance. Legal de-
cisions IN regard to this were quoted
sustaining his view of the case.
City Attorney Baldwin stated that in
'93 that the people voted overwhelm.
ingly in favor Of sewerage. The PROPOSE
ton to bond vas carried by majority
IN each ward, But did not receive the
necessary two.third vote. Business por-
llOuS VI iuc Sils we've SleallS IL LSeet VI
sewerage, and demand made for 1t.
In illustrating the capacity Of the
sewer, which he stated was large enough
for all demands ever to Oe made upon it,
he stated that l7.000,00O gallons of water
per diem was furnished by the city well
through an aperature but two and one
quarter inches in diameter. The same
sewerage system as planned for was IN
use in Keene, N. H., city little larger
than Jamestown; was personally in
spected by Alderman Wells, and he is
ready to state, under oath, that % feet
from outlet would not notice odor, and
the system answered all purposes.