The Bismarck tribune., 1929-04-15
From, Ward County


ing witnesses identify the time, con.
vcrsation and place the foundation
is sufficiently laid for their testimony
to the effect that the witness did
make such statements at said tirac
and place.
Appeal from District Court Ward
County, Jansonius, Special Judge.
Affirmed. Opinion Of the court by
Burke, Oh. j.
Conmy. Young g. Burnett. Fargo
for Appellant.
MCGEE g. Goss and sinkler &.
Brckke. Minot, for Respondent.
From Cass County Court
State of North Dakota, Palintiff and
Respondent,
VS..
John Mohcr, Defendant and Appel
liant.
Syllabus: n Under the provi-
sions of Sections 4176, C.L. 1913, town.
ship boards Of health may make only
temporary regulations respecting mat
tiers Of sanitation.
20 A regulation of a township
board of health is examined and held
for reason stated in the opinion, to be
general and permanent in its nature
and beyond the power conferred upon
the board to make under the proyi-
sions of Section 4176, supra.
Appeal from County Court of Cass
County, Hon. eigh j. Monson, Judge
Defendant was convicted Of q viola
ton of regulation of a township
board OF health. From the Judgment
Of conviction and from an order de-
nying his motion for a new trial, de-
fendant appeals.
Reversed. Opinion Of the Court by
Nuessle, j.
J. J. Mulrcady, Fargo. for Appel
liant.
John G. Pollock. States Attorney
Fargo, for Respondent.
From Stark County
Chrysler Light & Power Com
pany, corporation.
Plaintiff and Appellant Respond
ent, Cross Appeals.
VS..
The City of Belfield. Stark
County, N. D., municipal cor
poration,
Defendant and Respondent-App
liant.
Syllabus:
l. Under the constitution (Consti-
tuition N. D., Sec. 1897, an electric
light plant may not be constructed or
operated within any city or incorpor- :
ated village In this state without the
consent of the local authorities hav-
ing the control of the street or high
way proposed to be occupied for such
purposes"
2. The power so reserved to the To-
cal authorities Of a city or village to
either grant, or refuse, permission to
an electric light company of occupy
the streets thereof with its structures
is not limited to simple granting or
denial OF such permission: the local
authorities Of such city or village may
permit such use of the streets on GER
tain conditions only, and if the elec-
trio light company accepts the per.
mission or franchise, all valid condi-
tions or restrictions attached thereto
become binding upon it.
3. A city council has authority to
provide for the lighting of the streets.
alleys, avenues and public grounds of
the city and to that end may contract
with an electrict light company to
furnish electric current for such
lighting.
4. The local authorities Of a vii
lage or city, on granting a franchise
to an electric light company, may inn
pose as condition that such COM
pany shall furnish certain service to
the city at stipulated price, and
upon acceptance of the franchise
such condition becomes contract be-
tween the city and the electric light
company.
5. Where rate for electric cur
rent to be furnished by an electric
light company to city is fixed by
contract in the franchise granted by
the city to such company the rates
are controlled by the obligation re-
sulting from the contract.
6. The Board Of Railroad Commits
sioners has only such powers to regu-
late the rates Of an electric light
company as have been conferred up-
on it by the legislature.
z. The power to regulate such rates
is conferred upon the Board Of Rail-
road Commissioners by Chapter 1872,
Laws 1919. commonly known as the
Public Utilities Act. Following West
-ern Electric Company Y. Jamestown,
81 p. l57, 181 N. w. 1853, It is held
that such act does not confer upor,
the Board Of Railroad Commissioners
power to interfere In any manner
With rates for electric current to be
furnished by IN electric light COM
pany to a city for the lighting Of its
streets. where such rate Is fixed by
contract In the franchise granted by
the city to the electric light company
8. A right OF action at law to re-
cover moneys paid under mistake does
not arise out Of contract Of the par
ties but out Of an obligation imposed
BY law upon the recipient Of the
money to return the same to the
rightful owner.
.. Section 5c55 c. L. 1913 (which
defines q mistake OF law) Is ! part
Of the law Of contracts and relates to
the legal consent Of contracting par
ties. + the apparent consent Of q
party to contract has been obtained
through q mistake Of law. as defined
IN that section. the party whose con-
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