Bismarck daily tribune. [volume] (Bismarck, Dakota [N.D.]) 1881-1916, 1916-03-31
WAR ON. RATE. 4.
. E'' ! n 1||| i|l|||{,
Judge, '' Nl,iuaessie . Denies ME. Motion to
Throw Litigation Out of
N. !tesfl.sattIltlcourt ti.'s;ls4
fstit, SIS. e N. g,as asa, ,4,t
L1NDE BRINGS ACTION 7s'' = 7;
1i4,si sg.l.s asTo.DEc1DE ISSUE
Alleged Ignite Rates Are Settled
and Emergency Has
!. .s.a. Passed d., ~ t..r

dAN GpASSASy LAOS
i ..,s. Passed - ss.
The rate expert case entitled, The
State of North Dakota ex1rel Henry
J. Linde, its attorney general, plain
tiff, VS.. The Board Of railway commits.
sioners of the State of North Dakota,
j. A. Little ct al, defendants, came up
before Judge w. L. Nuessle yester-
day afternoon. The state was repre-.
scented by Theodore Koffel of counse!
and the defendant by w. H. Suits
man, president Of /, the board of rail.
way commissioners, and Miller e. ~.
ger Of counsel. , .-..i...
.; No Appropriation. AL
The complaint of the Attorney gen
eral alleged thatasthere is no appro-
priation out of which the salary and
compensation of the rate expert Of
the railroad commissioners could be
paid and that compensation was be-
ing paid without authority Of law and
in violation t;of the statute and con.
SututlOn or the state.
The plaintiff asked mat the temper
airy injunction which had been issued
be continued. b.,
The defendants through their attor-
neys in their answer contended that
while the legislature had failed to
make an appropriation for said rate
expert and while the legislature had
eliminated this item of appropriation
from the general appropriation bill
that the emergency commission on
petition Of the board of railway CON-
missiOners had to set aside anu ap-
propriated the sum of $3,S66.S4 for the
purpose of the employment and pay
ment of compensation of rate eX-
pert for the purposes of figuring a
new rate for the transportation of lig-
mite coal within the state. The su-
preme court of the United States hay
ing held that the old Ignite coal rates
which had been in force were confis-
catory and unremunerative to the
railroads. l...
... Motion to Quash. na
Attorney Stutsman for the defend
ants filed motion to quash the above
| counter affidavit which was filed by
Attorney koffel on the grounds that
| whether an emergency existed or had
| ceased to exist was one popularity
for the emergency commission, and
| that body was not in court; that
whether there was any further work
or necessity for a rate expert Was a
question within the discretion of the
| railway commission, and that so long
as the appropriation was subject to
the orders of the railway commission
the court had no jurisdiction over the
matter. lnsinuating that unless the
emergency commission met and with
drew the appropriation that it could
be drawn upon by the railway COM
missioners.
a Denied Motion. e..
Judge Neussle denied the defend
ants attorneys motion to quash, and
in doing so stated that it was a prop
err rebuttal to the defendants answer;
that the case was an important one
and involved some important points
which he did not care to decide on
affidavits, therefore, he dissolved the
temporary Injunction against the de-
PENDANTS saying he would prefer to
hear the case on its merits at the next
regular May term of court which
would give the attorneys an oppOrtun-
ity to file briefs, or that he would hear
the case on it's merits any time after
next week, if the, attorneys so stipu-
lated.
1t is understood that a companion
action will be started to compel the
emergency commission. to return to
the general fund the unexpended bal
ance set aside for the rate expert.
koffel States Position.
Attorney Koffel for the plaintiff in
the above action, stated to the Tri-
bune: ...s>. @..
THAT the public could judge Of the
merits of the petition of the board OF
railway commissioners to the emer'
gency board asking it to set aside
$4,000 for the purpose of figuring a
new rate for the hauling of Ignite
coal in the state by the fact that the
rate expert, Mr.. J. A. Little, was en-
ployed on August 1st 1915, and that
he completed the figuring Of the rate
in just four, days. Mr.. Koffel further
stated the defendants attorneys fur.
Their commended that the last legisla-
ture had placed the control of tele-
phone corporations under the board
of railway commission and from this
fact said commissions needed more
clerk hire to carry into effect the pro-
visions of this, statute.
II Files Affidavit.
Koffel, counsel for the plaintiff, filed
an affidavit in rebuttal to this answer
Of the defendants alleging that the
law placing telephone companies I'M
der control Of the railway commission
nad been passed long prior to the ap-
preparation bill wherein the item for
compensation asked for by the rail-
way commission for rate expert had
been eliminated. The Legislature hav-
ing passed upon this question directly
that the emergency BOARD had no
power to set aside or make an appro-
priation for this purpose. That the
legislature had at the time OF the ELI
mination of the appropriation for q
rate expert for figuring new rate on
Ignite coal taken judicial notice of
the fact. That the supreme court of
the United States had . not decided
the Ignite coal rate case and that it
might be reversed or affirmed, yet,