The Bismarck tribune. [volume] (Bismarck, N.D.) 1916-current, 1930-11-13
Mcfarland Holds
Legislature Alone
Has Power to Act
Continued from mage o,,c,

of the legislature in It's Slperio, right
to take away the power which it had
granted. and on behalf OF Tie state to
provide for the laying Of tine street
railway upon the streets OF the city
Of Bismarck. which right was SUI
parior to any right possessed by the
city.
no transgression Of settled. substan-
tial property rights. and none such
are here alleged. the state had control
over the streets of the city of Bis
lnarck. as we'll as said city and al.
cities within the state. and possessed
the power to lay its said ctreet rail-
way in the streets of said city.
Nothing Really Granted State
when the city of Bismarck grant,
cd the charter CT authority to lay the
street railway in the streets Of the
city of Bismarck. it granted the state
Of North Dakota nothing that it did
not already have. When the fran
chise expired. as it has expired ac-
cording to its terms. nothing expired.
because nothing was granted. The
right to give the franchise to the
state was a right which the city had
obtained from the state. and which
the state possessed as a superior au-
thority. and was a right possessed by
the city as a grant from the legisla-
ture but which. on the part of the
state. the legislature could limit or
take away at any time: and when it
authorized. by the act in question. the
construction and operation Of said
street railway in the city of Bismarck.
such was the effect of the pronounce
ment Of the legislature. through the
act under consideration"
Needn't Ask LEGAL Consent
The legislature has power 20 au-
thorize the construction of a railroad
in a city street. without the consent
of the municipal authorities. even
though the city charter confers on
the city council the authority to grant
the right to construct such a road.
Judge Mcfarland ruled.
THE state has the superior and
paramount right yer the streets of
the city of Bismarck" the decision
said. There is no constitutional re-
striction or limitation of the lcgisla-
ture in the exercise of that right. It
is a power that the legislature pos
sesSes in the absence of any reStric-
ton or limitation to the contrary. No
such restriction or limitation hos been
called to the attention of the court,
or has any such been found.
1T follows that the acceptance of
the franchise granted by the city OF
Bismarck to the state Of North Da-
kota is of no effect.
THE state of North Dakota re-
quires no franchise or ordinance
granting it a right to lay the street
railway in the streets Of the city of
Bismarck. for the simple reason that
any such right to grant any such
franchise is OF necessity by said city
first obtained from the state. The
city has no such superior right over
the state. Therefore. the granting of
such franchise. In the first instance.
vas an idle ceremony. and such, with
reference to the sovereign state is no.
required. it occupying the superior
position with the superior power"
The Bismarck taxpayers who
brought the action are l.. A. Tavis. A.
M. Brandt, Frank G. Grambs. C. s.
Fossum. p. G. Goddard. Mrs. Nils H.
Lovin. J. l.. Peterson and Esther E
Treeburg.