The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1930-10-14
STREET CAR SUIT
Being ARGUED IN
DISTRICT Court
State Contends Private lndivid-
uals Have No Right to Sue
Sovereign Authority

Arguments were being heard in dis
trict court today in an action to de-
termine the right of the state board
of administration to continue the
operation and maintenance OF Bis
marck's Itreet car line.
Counsel were discussing a demurrer
filed by the state to a suit by local
taxpayers who seek to force the
street car line out of existence. Judge
r. G. Mcfarland is hearing the case.
The taxpayers action is based on
the expiration of the term OF IRAN
chise granted the state March 4, 1903,
and accepted September 80, 1903, for
construction and operation OF the
line. Renewal of the franchise has
never been sought by the state, al
though the city commission twice
passed resolutions calling attention to
the necessity of doing so and set time
limits for the state to act or remove
the road. It also is commended hat
the railway, by reason of the failure
of the state to pave and thereby COM
ply with the provisions of the con-
tract for keeping in condition n
portion of the street between n
tracks and a foot and a half outside,
has become a nuisance.
Power to Bring Action at Issue
The state. through Harold Shaft,
assistant ttorrey general, is making
a major objection to the complaint.
It holds that the plaintiffs have no
authority to bring a suit virtually
against the state, not having been
granted such authority by the legls-
lature. as the constitution requires.
The court thereby is without jurls-
diction, he maintained.
The state also contends that n
plaintiffs are not the proper com
plainant no the BOARD and the city
of Bismarck the proper defendants.
The state has paramount authority
of streets and highways within its
borders, Mr.. Shaft argued. Permis-
sion given cities to regulate the use
of their streets does not divert the
legislature from it's supreme power,
he asserted. The state, therefore. Is
within it's rights in occupying the
route of the a line within Bismarck,
he ~contended.
Says City Only Can Act
If there were any right for the
plaintiffs to bring the action by rea-
son of special injury to themselves,
the assistant attorney general urged,
there was no such special injury
shown nor did there appear to be any.
The contention of MI. Shaft implied
that the ~city-which is included
among the defendants-wOuld be the
proper complainant. If the use OF a
street once is granted, only the party
that granted the franchise is the
proper one to step in and ask revoca-
ton or injunction. he said.
The plaintiffs in the case are resi-
dents and property owners OF Fourth
street, Bismarck, including l.. "A
Tavis, A. M. Brandt, F. G. Grambs
C.. S. Fossum, r. G. Goddard. Mrs
Nils H. Lovin, j. H. Peterson, an
Esther E. Freeburg. The defendants
are the board of administration! AM
the city of Bismarck as a munich
pality.
Defendants Argument
]. A. Hyland, who is representing
the plaintiffs, advanced the argument
that the board of administration L
subject to constitutional action In TIM
case by reason of operating the rail-
way illegally. The franchise has ex
pired. hence there is no authority u
use the streets, he said. And it ha'
been held that where Officials az
proceeded against for illegal acts, tn
suit does not in effect attack III
state. He cited a Sargent count,
case against the Bank of North Da
kota in which the state and the pr
vate business operations of the instl
tuition were differentiated. Tn
street railway, he held, was engagin
in private business to the extent tina
private passengers were carried 10
fares. He also argued against appll
cation of the supreme authority {
the state over streets and highway
to this case as not what was con
templated by that supreme power.
How the Road Originated
The complaint sets out that ord
nance 169, granting the state q e
wear franchise and enacted by tn
CITY commission March 4, 1908, We
the inception of the railway. tn
route set out in this ordinance W.
from Twelfth street west on Mai
avenue to Fourth street and mort
on Fourth to Iowa avenue, theme
eastward through Capitol park to tt
capitol. The state accepted the fraI
chise September 80, 1908, but the CT
had to extend the time for beginni1
operation from January !, 1904,
March l. 1904, by ordinance I'll.
The franchise expired Septemb
30, 1928, and on February 2, 1925, II
CITY by resolution of the comml
sioners notified the board OF admit
~istration that the time had arriv'
to ask for a renewal Of the franchi
and set February S. 1875, as the tin
limit. No application was filed al
the franchise is held to have lapse
leaving the board Of adr1inistrati'
no further authority to continue T.
line.
August II, 1925, the city commi
sion passed another resolution, II
time directing the state board OF a
ministration to ceaSe operating t
line and remove its equipment, esp
cially on Fourth street, north
Thayer, before September is, 49,
The other portion downtown "
paved between the tracks and not
of the equipment was removable u
less the streets were torn up.
Correction Is Made
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