The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1922-07-27
RETURN FILED ! |D|
BY DEFENDANTS
4 TO ROAD s suit III
If Construction of Road Is II.
legal Payment of Money for
Bridge Illegal Also, Claim
SAY CITY ACQUlEsCED
Defendants Also Declare us.
Roads Chief Declared Pro-
iect 1876 Best Route

DECLARATION CHaC IL Lne prOpOSeu
Main street road to the new Missouri
river bridge is illegal the use of any
of Burleigh county's money in build
ing the bridge is illegal, is made in
the return of defendants in the suit
filed in at attempt to enjoin the
building of the road. The bridge site
also is within the city limits, it is
declared.
1t is further alleged that the board
of city commissioners Of bismarck in
I a formal resolution acquiesced in the
buildings of the Main street road,
known as federal aid project No: 1876,
and that the county may spend money
on state highway passing through
a city with the city's consent.
Several thousand dollars have been
spent by the Northern Pacific rail-
road on the underpass construction
and plaintiffs are estopped by failure
to bring their action before the
work began, it is declared.
In this connection defendant attor-
neys produced, letter from Thom-
as Mcdonald, chief Of the United
States Bureau of Roads, in which he
said that several alternative routes
to the bridge were considered and
that the Main street project, No. 1856,
was selected solely on it's merits,
chiefly because of the ease of cross
ing under the Northern Pacific
tracks. ,=
Both a demurrer and return to
the order to show cause was filed by
defendants attorneys, who are Attor-
ney-General Sveinbjorn Johnson, Geo.
Shafer, assistant attorney-general.
Alfred Zuger, representing Burleigh
county and Benton Baker, member
of and representing the state high
way commission. - 81. 5tl %
Hold Jurisdiction Lack
TIL demurrer of the defendants de-
clares: ..'.....
That there is defect of parties
plaintiff in that the city of Bismarck
is not named as a plaintiff.
That the United States is not made
a defendant" 20. aE"t# u h, ''T
That the court has no jurisdictioni
of the subject because the object of
the action is to obstruct, interfere
with and prevent the construction of
a rural post road and highway pursu-
ant to the provisions of the North
Dakota laws and act of Congress.
That the plaintiffs do not have le-
gal capacity to sue, and the complaint
does not state a cause of action.
The return sets up the following
averments: ....
The jurisdiction of the city of Bis
marck over the streets, alleys and
public places within the limits of
such city is not exclusive to the ex-
tent of precluding the establishment
and construction of highways forming
a part of the state and national sys-
tens with the acquiescence of the
board of city commissioners of Bis
marck, nor is there any law forbid
ding or preventing county from ex-
pending money Oh county highway
or road running through city.
U. 8. Pays Half Cost
The cost of the construction of the
Northern Pacific underpass is, under
act of congress, borne equally by the
U. S. Government and the railroad
company, the cost of preliminary enr
gineering expenses alone being borne
by the county of Burleigh.
That the highway is an integral
part of state and national highway
and approach to the Missouri river
bridge; that the route of the high
way was selected after consideration
Of several alternative routes by the
Bureau of Public Roads Of the U. S.
of Agriculture.
That the bridge across the Missouri
river was constructed without objec-
lion or interference on the part of
;he plaintiffs, who are men living
near Driscoll, notwithstanding the
'act that the site thereof insofar as
he same is within the limits of the
county of Burleigh is exclusively
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