Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-09-10
DECIDE PAVING
CASE MONDAY;
!. ARGUMENT IN
Andrew Miller Suggests That Pol,
itics Is at Bottom of
Opposition.
-- Il
DEFENDANTS DECLARE
ACTION IS IMMATURE
Judge Ellsworth of Jamestown
Is Brought Into Case at
Eleventh Hour.

Judge Nuessle will announce his de-
cisiQn upon the application of certain
property owners for a temporary in.
junction to restrain the city commits
sion from letting the paving contracts
in District No. 2 Monday at 10 a. m.
He disposed of the contention that the
statute is unconstitutional, under
which the city commissioners pro.
ceeded by stating that it would not be
considered in this litigation. The
chief issue to be determined is the
suggested contract to be entered into
with the city engineer relative to the
increasing amount of work to be
done under the paving contract.
6attey's Affidavit.
In this connection, Commissioner
Battey, chairman of the city commits
sion paving committee, has made an
affidavit in which he alleges: that the
city commission has never authorized
the city engineer to increase or de-
crease the amount of the work which
shall be performed under the paving
contract; that no formal action at any
time has been taken giving him the
right to do so; that the provisions re-
ferred to is paragraph in suggest
ed form of contract"
Miller Suggests Motive.
All day was spent in the arguments
yesterday. At times they waxed
slightly acrimonious. Andrew Miller
of counsel for the city suggested to
the court that political considerations
had entered into the opposition to
paving from certain parties who were
shielding behind the litigants at bar.
Their only interest, he continued, was
to delay the paving project, thus
throwing 1t into the city election next
spring. Much Of the opposition, he
contended, came from those who had
been unable. to horn i'm
Is Want to Fish.
"If this project is delayed they will
60 fishing for the next two or three
MONTHS" he, said, lin order to catch
something"
He rebuked R. N. Stevens, attorney
for applicants, for certain personali-
ties indulged in during the morning
session.
Morning Session.
Andrew Miller, former attorney gen.
eral, made the chief argument in de-
fense of the commissions action. AS
sociated with him are C. L.. Young and
F. E. McCurdy, city attorney. His
argument was in reply to the conten-
tions of the paving protestants repre-
sented by R. N. Stevens, F.. H. Regis
ter and Judge Ellsworth of James
town. - ~ ''sat' @isE ..H
Before arguments were presented,
Mr.. Miller filed with the court de-
murrer to the complaint together with
an affidavit from P. c. Battey, chair
man Of the paving committee of the
city commission, stating that the city
has entered into no contract with any
paving concern, selected no kind of
pavement or in any way obligated it.
self.
This laid the foundation for the at
tack upon the complaintants' position
by Mr., Miller and his associates that
the action was premature and the
complaint drawn irrelevant.
Legislative Function.
"The necessity or propriety for this
improvement" said Mr.. Miller, "is not
a question for the court. 1t is purely
a legislative matter vested solely with
the city commission. The city COM
mission has absolute power to deter.
mine the propriety of the improve
ment and it is not renewable by this
court.
There can be but two objections
raised, First, whether the city COM
mission proceeded without authority,
or second, whether fraudulently.
conformed to Law.
Mr., Miller showed that the author
ity was vested in the commission to
proceed with paving when, in the
opinion of the members, such an i'm
provement was deemed necessary. He
took up the various steps in the pro-
cedure showing that in each instance
the actions of the commission were in
conformance with the laws of the
state.
mo one knows" he said, what the
cost of this improvement will be. The
complainants have arbitrarily taken
two or three kinds of pavements and
figured out their confiscations. We
believe that they have shown consid-
cradle nerve to come before the court
with such flmsy contention. No one
knows but that cheaper paving will
be used than any of those upon which
the complainants base their conten-
tions that the improvement will be
confiscatory.
When Tax is Levied.
'sThe time for these complainants to
come into court is when the tax is lev
led. Then if the assessment is great
er than the benefits, it is the duty of
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