The Fargo forum and daily republican. [volume] (Fargo, N.D.) 1894-1957, 1911-09-30


err. The work beneath the soil as we'll
as that upon the surface ought to be
definitely arranged in such harmonious
fashion that the work done upon the
one would the least disturb the other.
The manner of paying for the water
mains is upon the same plan as that
for sewers and paving, being taxed to
the property owner rather than to the
city in general.
1t is a further significant fact that
by section 48 the city council was en-
powered to prescribe the manner Of
exercising their power in the absence
Of express legislation to the contrary,
and they were given, by virtue of sub
paragraph rs Of section Al the power
to purchase water works, etc. So that,
under this power, above mentioned,
the city not only has the inherent pow
er, but as well the statutory power to
purchase water works and provide by
ordinance the methods and details OF
making such purchase, unless the
power is derived from article IS. as
commended by counsel for the plaintiff.
This contention Is based upon the
fact that in section 146, with reference
TO bids the statute says: Each bid for
any work to be done under the pro-
visions Of this act shall be accompan-
led by certified check" etc. And
again, section 149: "All contracts en-
tered into for any work provided for in
this act shall be entered in the name
Of the city and such contract
shall require the work Hereunder to
be done pursuant to the plans and spe-
ciffcations therefor on file In the office
OF the city auditor" In other words,
because the power to build water works
is found within the provisions Of the
entire incorporating act, and in these
several sections of article is the word
act" is used, therefore the provisions
OF this article on sewers, paving and
water mains must apply, as to the de-
tails of filing plans and specifications, |
asking for bids, making contracts, etc. |
This construction OF the statute does
violence to well understood methods OF |
constituting statutes. Counsel do not |
disagree upon the general propositions
of law involved in these methods Of |
construction, but do differ widely in /
their application.
A complete analysis of article is
seems TO be necessary to ascertain
whether the word "act" as used In /
sections 146. 14s and 149 refers to the
article under consideration, or whether
1t refers to the whole enactment con-
corning cities. I have made this analy-
sis, viewing the several sections In all
their relations, one with the other, and
/ am OF the firm conclusion that In no I
manner do the provisions Of the several
sections relied upon refer 10 any other
work than that mentioned in the ar
ticle to-wit. with reference TO sewers,
paving and water mains, except in one
or two instances with reference to
sidewalks, which are specifically
named. This IS particularly reinforced
when we consider that under the pro-
visions OF section 141 1t is stated that,
"all cities shall have power to grade,
curb. pave, repave. gravel, macade-
mize or gutter any street, highway,
avenue alley or public place In SUCH
city, and to extend. improve, enlarge,
relay or replace the water mains and
MIGRANTS Of such city, and to lay new
or additional water mains therein, and
to defray the expenses OF all such
work as hereinafter provided show
Ing without doubt what follows here
matter" lis linked TO and has connec-
ton only with what precedes In the
section Just quoted. Water works are
not referred TO in this section.
The contention Of plaintiff would re-
quire the courts to engage in undoubt-
"a judicial legislation and say. These
sections or parts OF sections apply to
water works, and those do not Other
wise, IL all sections apply, then we are
thrown into the ridiculous situation OF
having the water works plant paid for
ov abutting property owners the same
ID sewers, pavements and water mains
which cannot be the law.
One of the contentious made by
sounsel for plaintiff was that the con-
ract was void because 1T does not
provide that the city shall not incur
my general liability SIS provided by IN
section 149." They were compelled for
sake to make that claim.
ret the contention itself only shows
he utter inapplicability OF the statute
o the water works proposition, be-
,ause II must be conceded on AL hands
hat the city does incur a general iia-
aility.
III 1t may be urged that many OF the
referred to are appropriate
ind should be adopted, the answer is
It once suggested that such appeals
Fhould be made to the legislature and
lot to the court.
Ee9 / E