The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1920-11-13
AUTHORITY OF
COURT DEBATED
IN WATER CASE
Court Takes Under Advise
ment Attack Made by City
Taxpayers
COMMISSION NOT THERE
Makes No Attempt to Defend
Rate Increases Which Are
., - Attacked

blSlildfck water supply company, IN
supreme court Friday moved to dis
miss the suit brought by Paul G.. Rem
lngton, ct al, as water consumers,
against the Bismarck Water Supply
company, to restrain the putting into
effect the sixty per cent: increase re
Gently granted the company by the
board of railroad commissioners. The
court took the motion under consider
alton and an early decision on this
point is expected.
w. ID. Mitchell, st. Paul and Andrew
Miller Of Miller, Zuger & Tillotson, ap-
peared for the water company and
Audrey Lawrence, c. L. Young and II.
F. O'Hare, appeared for the group Of
water consumers.
Mr.. Mitchell made the major argu-
ment for the public utility and Mr..
Young for the citizens of Bismarck
who have joined in this action.
g State Not Represented
Although certain members of the
railroad commission are joined as par
ties to this action, no appearance by
attorney or personally was made by
them Assistant Attorney General
Cox, who was present in court, stated
that no request had been made for
that office to represent the commits
sion whose authority to act is mater
ial issue in the pending case.
Lemke Present
~ William Lemke, attorney general
elect, and in many matters special at
torney for Gov. Frazier, appeared in
court toward the close Of the argu-
ment but did not participate in the
proceedings. ....
Upon opening the case Chief Justice
Ckristianson inquired if the state was
represented. He intimated that it was
material that such representation sbe
made as department of state govern
ment was involved in the proceedings.
Commission in Washington
Members of the commission are in
Washington and evidently no attempt
was made to make any defense against
the attack upon it's authority made in
the complaint of the citizens bringing
the action. -
Attorneys for. Bismarck Water Sup
ply company questioned the jurisdlc-
ton of the court on the ground that
the case had been removed to the fed
eral court automatically and also that
the public utility statute expressly
provided that appeals must first be
passed upon by the district court and
that the procedure to invoke the orig
inal jurisdiction of the supreme court
was irregular.
Sufficient Precedent
Mr.. Young in his argument contend
ed that there was sufficient precedent
for invoking original jurisdiction in
this instance because the board of
railroad commissioners, he asserted,
had exceeded their authority in raising
the rates when no petition or applica-
ton to raise the rates had been pre-
sented to the commission. He cited
the case of the increase in railroad
rates by the commission which theI
court had recently overruled at the
behest of Mr.. Lemke.
Constitutionality Unquestioned
No attempt was made to raise the
issue of constitutionality. That feat
ure of the petition to the court by the
group of citizens was not argued
orally or in the brief and evidently is
the intention of the litigants to drop
the contention of this litigation at
least.
Mr.. Young cited instances which in
his Judgment the board of railroad
commissioners had exceeded their au-
thority, and had granted rate increases
without due process of law. sTou
The entire case hinges now on
whether the supreme court can as
sumo original jurisdiction if a show
ing is made that the board of railroad
commissioners exceeded authority in
granting a sixty per cent. increase in
water rates upon an application from
the city of Bismarck to reduce the eX-
listing rates and provide additional
service.
Robinson's Attitude
Justice Robinson from the bench ,
said that in his estimation the court
had jurisdiction and that the whole
nub of the case was whether the rail-
road commissions water rate increase
was valid or invalid.
No intimation of how the rest OF the
court stood was made from the bench.
The matter was taken under ADVISE
ment and option given to lltlgants 10
argue the case on its merits later
should the court deny the motion 10
dismiss and assume jurisdiction.1
uCocLtoi1 Rar' I ,ateSt