Bismarck weekly tribune. [volume] (Bismarck, Dakota [N.D.]) 1884-1943, 1895-08-16
IN TIE LOCAL SWIM.
Gist of the Reasons for the Decision
Of the Electric Light Case by
49,. Judge Winchester.
Proceedings OF the State Normal
School Board at Their Ses-
sion at the Capitol.
Various Items of Local News Picked
Up In and About the City of
Bismarck.
The Electric Light Franchise.


The electric light franchise has been a
subject of much comment, particularly
since the commencement of the action
by Mr.. Hughes to compel the mayor to
sign a contract giving him the right to
maintain an electric light system in the
city. Judge Winchester having refused
to grant the writ in the mandamus pro.
ceedings, the question has naturally
arisen: What was the judges decision,
and on what was it based? While the
judgment of the court is simply that the
writ is denied, it is learned upon inquiry
that the mayor has been fully sustained
in the position he had taken in the case,
and the reasons why the Judge came to
the conclusion he did may be- summarized
as follows:
IT a contract or undertaking contem.
plates, in any emergency, "a liability to
pay, when the contingency occurs the
liability is absolute, the debt exists, and
it differs from a present unqualified
promise to pay only in the manner by
which the indebtedness was incurred.
Then if the indebtedness so arising
was forbidden, the contract upon which
1t arose, which expressly contemplated
and provided for it, though in itself ex-
ecutory and creating only a contingent
liability was also forbidden. Prohibi-
ton of the end is prohibition of the di-
rect. designed and appropriate means.
The law will not allow one to do indi-
rectly what it forbids to be done d.
rectly.
The ordinance in question, if in force,
constitutes an agreement or contract on
the part of the city with Edward Hughs.
1t is not an agreement or contract unless
by it the city is obligated to do some
thing. If it contains no obligation on
the part of the city it is nudum pactum
and has DO legal effect and cannot be
enforced.
Parties dealing with the agents or Of
ficers of municipal corporations must, at
their W peril, take notice of the limits
of the powers both of the municipal cor.
poration and of those assuming to act on
it's behalf.
The mayor and council of the city of
Bismarck have only such powers as are
granted by the charter.
They have express power to provide
for the lighting of the streets.
They have no power to grant a license
to erect poles and string wires, except
for the purpose Of lighting the streets.
If the ordinance in question and the
proposed contract is for the purpose of
lighting the streets it is forbidden by
the terms of the constitution relating to
the debt of cities.
If the ordinance is not for the purpose
of lighting the street is within the
power of the mayor and council to grant
the privilege claimed. 1t is uncertain
and Indefinite on this point and there.
fore void.
The legislature has paramount author
ity over all public streets, and legisla-
tive authority is necessary to justify the
use of the same for gas and water pipes,
telegraph, telephone and electric light
| poles and wires.
Subdivision 10 of Section u of the
charter of the city of Bis marck contains
all the authority of law possessed by
the mayor and council of the Getty for
! passing the ordinance in question and
entering into the proposed contract and
it reads as follows: "The mayor and
council have the power to provide for
the lighting of streets"
This includes the authority to do
everything necessary to carry such
power into effect, and to this end they
may enter into a contract with any cor
poration or individual to light the streets
with electricity, and incidentally grant
to such person or corporation the right
to use the streets to distribute light and
power to citizens and corporations Q
! orally.
The grant of the use of the streets for
any other purpose than the purpose of
lighting the same requires legislative
sanction; such authority is not contained
in the city charter; it is not within the
police powers of a city to grant the use
of the streets for any private purpose
the city is limited to the grant of powers
contained in the charter.
The language of the charter on this
point is plain and direct, and means just
what it says; now is the ordnance and
proposed contract: an agreement or con-
tract with Mr.. Hughs to light the streets,
or is it in effect q mere license granting
him the right to use the streets for a
purely private enterprise?
The court holds to the latter view and
believe that the proposed contract was
made under the pretense of furnishing
power Se light the streets of Bismarck,
but vas in truth and in fact a practical
donation of a license to Nj. Hughs; it
was a donation with the exception alone
that he should light the city hall free;
Of course the contract would have to
conform to the provisions of the ordin-
ance that authorized the making of the
same.
From this standpoint, the ordinance
in question is not a contract, but a mere
license, for the reason that it contains
no obligation or obligations binding on
the city; this being true, no right or
rights have vested in Mr.. Hughes, and
the action of the common council in re.
pealing the ordinance was legal.
But if it be claimed that the ordinance
and proposed contract IS a contract to
light the streets of the city of Bismarck;
then it c~ontravenes the express inhlbi-
ton contained in Section 1873 of the
constitution of this state, which reaus
as follows: "The debt Of any county,
towns hip, city, town, school district or
any other political subdivision, shall
never exceed five per centum upon the
assessed value of the taxable property
therein"
H.a ~ " ST..