Lexington weekly intelligencer. (Lexington, Mo.) 1871-1887, 1886-01-09
The Lawyers Opinions.

We lacked space, last week, to print the
opinions of Judges Walker and Young on
the Wa,erworks question. We give them
below:
OPINION OF JUDGE WILLIAM YOUNG
To John Tavjnan and Others. Commsttee ap-
pointed by tie City Council # the City Of
Lerington to ingesttg4ts and report upon the
status Of tie city in regard TO tie Water
wcrks:
GENTLEMEN: At your request L hereby
give nv opinion upon the legal status OF the
city under the contract. by ordinance, dated
June 10Th, 1894, with the Lexington Water
Company. IL cannot be expected that in 80
short a time l can specify al Of the duties
and liabilities Ofthe city or The company as
set out in the contract. To do so would be
but to transeribe the entire ordinance.
Neither am l possessed Of all Of the facts IN
! the case and I understand. from CONVERSE
ZION with several members Of the committee,
that they have no upon several
very essential particulars, and. indeed, have
no present means of getting such infOrma-
| tIOn, as. for instance. the tested strength of
the mains. But from facts that are OF public
| nOtoriety, l have no hesitation in giving it as
my opinion that the company has failed TO
comply with its contract in several material
particulars and Is not IN q position to insist
| upon an acceptance of the works by the city
| and a compliance with the terms of the con-
tract stipulated to be performed on her part.
1t would perhaps be unwise, and would
certainly take mu:h time to specify every
particular in which there has been a failure
on the part of the Water Company 10 comply
with the contract to II material degree. 1t
will be efficient to notice one particular I'M
disputed and known to the whole community
viz: The failure of the company to complete
the works within the time specified. True,
that generally speaking time is not theessence
of the contract. as the legal phrase Is, but
it is equally true that 1t may be made 80 BY
the terms of the contract and there, is an ex-
press stipulation to that effect in this ordi-
nance. (SectionS II and Is of the ordnance
And while it Isl fact tn 1t the courts are
very adverse to declaring a forfeiture of a
contract of such magnitude, and are most ex-
tremely so where the breach Is simply one OF
time, yet 1 am of the opinion that such hesi-
tatiOn will disappear when the delay Is shown
to have been occasioned by the inherent
defects of the thing to be supplied. arising
either from fault in the plan, or from care
lessness in CONSTRUCTING or from insufhciency
in the material used FLOR the use required
That the delay has been OccasiOned BY one or
the other of these defects there can be no
doubt in the minds of unprecedented men
; acquainted with the facts even such as are no
tOrlOus. l conclude then that the company
is in no position to Insist upon anything from
the city and cannot become so except by the
act of the CITY through the council. l hope
1 uef oC u LII tShbC ihS sobhS
on the matter. The council does not sit as
4 judicial body to decide between the city
and the Water company, In this matter Il
represents one party to a contract. Nothing
it can do will bind the company any more
firmly, Nothing it can do will relieve the
city from any legal obligation. But it may
by its action, materially relieve the company
. from some of its obligations, or lose to thu
J city all the advantage Of its present position
= This should dictate extreme caution. The
,kyy - 4,-, 80, a. ocftio e. .ttnsrta ar,,,o 4
, the company. and while l would neveI
counsel an arbitrary use of that advantage t.
> demand anything unfair from the company,
wouiu certainly use it TO relieve the city from
several very unwiSe and Onesided provision
and agreements in the present contract
First among these would be the repeal o
: section number eleven and the proyiso il
section six. Let these watorworks once b
accepted by the city and let 4 payment o
Il two be made of interest on the bonds men
toned in section eleven and the city will b.
held bound upon the bonds for the interes
d thereon. even though it should afterwar
e transpire that the company refused to operat
the works altogether. The hydrant reuts
l should be payable directly to the compan.
8 only. Make the payment conditional upOl
q the proper operation of the works for tn
y proceeding quarter; pay at the end of tn
quarter. that is. only pay for the thing ate
q you get 1t. By so doing nobody can suffer
Otherwise great Injustice may be lone to TIL
1 q u Nv wv III Sotil Pth1 MN
complain if it is paid for all it earns. II Ger
tainly ought not to ask for more. Th
changes suggested make the contract eQua
As it is is, at present, 1t is most unPqua
Respectfully, WILLIAM YOUNG.
OPINION OF JUDGE
The transfer Of bonds issued by the Lex
ington Water Company or execution of NOR
gage under the11Ih section of the contract wi
not deprive the cItv of Its defense as again,
u the hOl ers Of bonds or mortgages that tn
In city would not have had against the Waite
Of Company. Any expense that the city migt
incur in taking temporary possession Of tn
works may be offset BY the city against il
liability for rent of the hydrants or otht
earnings of the Water Company. Should til
te Water Company fall to supply water to tt
city in sufficient quality or quantities land tn
contingency should arise, as provided in Sc
. D, OF the contract. the expense Of so opera
ting them could be deducted from the quartz
~ ly payments, either from the earnings
hydrants or priva'e consumers. But the elf
n would be required. under the terms of Il
lr. contract, to take possession of the works al
run them in accordance with the provision
tie OF section six OF the contract, or become lii
[r. BILE to the bond holders for interest on tt
bonds. There Is no forfeiture of the contrat
i, But the remedy of the city is on the bond
the Water Company for damages as provid,
in sections Il and 10 of the contract. b
the Water Company is required to build t
D., works in accordance with section 4 OF |
contract, before any liability attaches TO I
city. When the works are completed. as r
ri, quired by section 4 of the contract, the tt
can only be made, and until the Waterwor
are completed and the test is made, the c
is not liable for the hyGrant rental.