Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1905-06-16
THE STARK COUNTY CASE DECIDED
Supreme Court Declares Law Authorizing En-.
Iargement Of Stark County to be
Unconstitutional
Boundaries Of the Western County Remain Unchanged as
Result Of the Decision

equitable proportion of the Indebted
ness of the county so reduced"
The supreme court holds that the
act under which the election was held
is vulnerable to the objection that it
provides for change of the bound
aries of Stark county without the con-
sent of a majority of the voters in
that county. The act provides that
the change of boundaries shall take
place If majority Of the aggregate
votes cast throughout all the territory
affected shall be in favor of the
change.
Under the provisions of this act
there might have been a majority of
sixty-three votes in Stark county
against the proposed extension of
boundaries, yet the change would take
place because the majority of sixty-five
in Hettinger county for the change
would have overcome the combined
majority against the change in the
other two counties. The court says:
1T is no answer to this objection to
urge that the result of the election
showed that a majority of the voters
of the only organized county affected
consented to the change, and hence
the constitutional rights of the in
habitants of Stark county, who alone
were in a position to claim the pro-
lection of section 1853 have not been
infringed by the actual operation of
the act. This section of the organic
law in effect prohibits any legislation
which will permit the alteration of the
boundaries of an organized county
without the consent of a majority of
the voters thereof. A statute which
makes that result possible is void be-
cause it ignores the constitutional
limitation in that respect upon the
powers of the legislature. It is a ques-
ton not entirely as to whether the
constitutional rights of one or more
individuals have been infringed in a
particular case by proceedings under
color of law, but it is a question Of
power in the legislature to enact the
law under which the proceedings have
been had
The syllabus of the decision is as
follows:
1. Section 1853 of the constitution
applies to organized counties only.
2. Chapter SO, Laws of 1908, is in
conflict with section 1853 of the con-
stitution, because it authorized the ex-
tension of the boundaries of the Or
gained county of Stark so as to in
clude in the latter two unorganized
counties and certain unorganized terri
tory, without the consent of a majority
of the voters of Stark county.
8. The fact that a majority of the
voters in Stark county voted for the
extension of boundaries under the law,
did not avoid the constitutional OBJ
lection, because the law being void,
all proceedings under 1t were also
void.
4. Where the constitutionality of a
statute depends upon the power of the
legislature to enact it, it's validity must
be tested by what might be done I'M
der color Of the law and not by what
has been done.
5. Chapter So, Laws of 1903, is a
special law for the alteration of coun-
ty boundaries, and is therefore in con-
f1ict with section 1877 of the organic
law.
Original application for writ Of
mandamus.
c. N. Erich, attorney general, and
Newton & Dullam, R. N Stevens and
Voss & Hanley, for plaintiff.
M. L. Mcbride, states attorney for
Stark county, and Guy C. H. Corliss
and L. A. Simpson, for defendants.
Opinion by Engerud, J.