Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1902-11-25
COURT REFUSES PETITION.
Supreme Court Will Not Grant Ap-
plication to File Petition in
County Boundary Case.
District Court is the Forum to Which
Applicants Must First Apply
in Such Cases.

The supreme court of the state has
desied the application of George j..
Walker, in an action estitled George
]. Walker VS.. Mclean county, North
Dakota, to file an information in the
nature of a quo warranto proceeding,
against the ciunty of Mclean, and of
his counsel to file a sdmilar action.
against the counties of Pierce and Nc
Henry, the object of the proposed ac-
tDons being to bring before the su-
preme court the question of the On
stitltionality of the laws f 1901, which
fixed the boundaries of the three coun-
ties in questiin, and of several other
counties which were affected by the
same law. The question involved is
a highly important one, affecting. the
boundaries of nine counties. In 1891
the Legislature of the state passed a
law, entitled "An act to increase the
revenues of The state by changing and
increasing the boundaries of the coun-
ties of Pierce, McHenry. Bottineau,
Ward. Mclean, Williams. Billings,
Stark, Morton and Mercer" This act
added to the several counties named
the territory comprised i'm the old
counties of Church and Renville, and
under the provisions of the law, taxes
have been levied, school districts or
gained and other jurisdictional action
taken by these counties in the territory
OF the old counties which was added
to Them, under THE law. Since the
passage of this law, it has been con-
tended by certain persons living in the
territory formerly comprised in Church
and Renville counties, that the law
was unconstitutional, and that the ac-
ton taken by Mclean, Pierce. Nc
Henry and other counties, was illegal
and void, so far as it affected territory
which was added to them under the
law in question.
In 1895, a law was passed changing
the boundaries of Billings and Stark
counties, under the same title as the
1891 law. This law was declared I'M
constitutional by the supreme court
because of a defective title. This de-
cision again raised the oft discussed
question of the validity of the 1891
law. Actions were brought with the
object of testing the old law, and
along them was this ACTION of Walker
VS.. Mclean county, which was to test
the j~urisdictional right of Mclean,
Pierce and McHenry counties to levy
taxes, and assure control of the terri
tory in old Church county. The SUI
preme court denies the application to
file the proceedings, for the reason
THAT under the state constitution dis
trict courts have original jurisdiction
in this class of cases, and that suf1-
clent reason is not shown in the NOV
ing papers why the REALTORS did not
seek for relief in the district court.
1t is also held that the jurisdiction of
the supreme court is primarily appel
late, and that the prerogative powers
OF the court will only be put forth in
defense of the state, its franchises and
the liberties of dts people.
The syllabus of the decision follows:
Quo waaranto proceedings. In this
proceeding the relator, George J.
Walker, a private citizen, asks leave to
file in this court an information in the
nature of quo warranto; and counsel
for the relator, ait the same time, asks
leave to file similar informations in
behalf of two other private citizens
against the counties of Pierce and Nc
Henry respectively. -l-@
The several informations sought to
be filed, allege, in substance, that each
of said counties has encroached upon
a portion of the territory lying within
the boundaries of Church county, and,
by their combined action, have alb
sorbed ALL of said territory and that
said counties are now, and since The
Year 1902, have been unlawfully exer-
cising governmental control, as coun-
ties. over all the territory of Church
county. It is conceded that Church
county has never been organized IS a
county, and THAT the action taken by
the counties of Mclean, Pierce and
McHenry was had under color Of a
statute, viz: under Chapter SO. Laws
Of 1891. For the purposes Of the case
1t is conceded THAT said statute is un-
constitutional. The applications OF
relabors are opposed by the attorney
general Of the state.
The relator ask leave to file dnforma-
lions in the nature of quo warranto,
and do not ask that the writ of quo
warrarto be issued. Held, constituting
section 81, state constitution. that, in
this respect, the REALTORS have pursued
correct practice.
49, He'll fl11>th ar 10, oosax, n,.,h - 4l..