The Memphis appeal. [volume] (Memphis, Tenn.) 1886-1890, 1889-02-24
TO FIGHT 4HE CONTRACT.
LAWYERS REFINED ON BOTH SIDES
TO DISCUSS WATER.
Extracts From Supreme Court Decisions
and the Water Company's Contract
Which VIII Form Nice Foundation
Stone for tho Contest.


contract with The Artesan Water Com
pany had retained counsel and would
carry the case through the courts.
Messrs. ID. II. Poston and I. u. Turley
were cited rs the legal luminaries in charge
Of the adverse contest.
The reporter called at the Office OF Mr..
Poston. where veri6cation of the report
was received, but as Mr.. Turley was at
Nashville, little had been done toward
bringing the issue to point. On Friday
Mr.. Turley returned, and soon learned
that his partner, Mr.. Luke L. Wright,
had been retained by the Water Company
in the same case, which impelled him to
withdraw from the cause OF the opposi.
ton. Thereupon, Mr.. lIu. l.. Brinkley, as
leader Of the opposition, consulted Judge
Henry Craft, TO secure his corporation
with Mr.. Poston. The Judge conferred with
Mr.. Poston, who furnished him with mem
oranda OF material that could be fired at
the Water Company. The two learned
lawyers are to furnish Mr.. Brinkley and
his associates written opinion on the
case early this week, upon which hinges
the further prosecution Of the contest. But
there is no doubt OF the prosecution being
pushed, rs the attorneys have pronounced
the cause and lis foundation holy and
substantial.
IL appears that the attorneys retained
10y the opposition are fortified by decisions
OF the Supreme Court ON the very points
presented, ~ we'll rs by the charter
obligations OF the old company,
to win, hands down; and not
only win, but hold the present water com.
pany TO a plentiful supply Of pure, whole.
some water, since arteslan water has been
furnished by IL, experts pronounced it Of
this quality, and tho company itself pro-
claims that there is enough at that source
of supply for all time to come. The first
decision in which the water-works COM
pany was involved was made by the Su.
prome Court June 81, 1871. sixteen months
after charter was granted the company
for exclusive privileges in the supply OF
water Tor a term OF thirty years. 1t was a
case wherein Tho company was resisting
the city OF Memphis in its movements TO
establish aud operate rival works.
Learned counsel was retained on both
sides, who advanced exhaustive argu-
ments. The decision Of tho court was
unanimous. delivered by Judge Nicholson.
Ia Il the court sets forth that on the 18th
dny OF February, 1870, the Legislature
granted a charter Of incorporation 10 the
Memphis Water Company, for the pur-
pose Of supplying water 10 the city OF
Memphis aud the inhabitants thereof by
means Of public works. Work was inn
mcdiately begun constructing its water
works under ia charter, without the con-
sent and in opposition TO the will OF the
General Council Of the city, aud without
making compcii4ation therefor 10 the
city or 20 the adjacent property owners.
After the water company entered upon
the construction OF It's water. works
under is charter, the city Of Memphis
commenced to erect water works for
the purpose OF supplying the city
and its inhabitants with water, aud pro-
cccdcd to erect the same on lis own ac-
count, In vocation Oi the charter OF the
water company Which declares that the
privilege granfcd IL arc exclusive for the
period OF thirty years. Summing uD the
ease, aud even passing upon the question
OF iofbiddng of monopolies hy the Consti-
tuition, the decision concludes "Our
conclusion IN, that upon the facts agreed
upon the Memphis Water Company ha.
the exclusive privilege OF supplying the
city OF Memphis aud is inhabitants with
water 10y means ul the waicr-Works erected
in pursuance OF their charter. such wa,
the verdict 81 the court below, and We ai
firm IT,
The foregoing decision only serves &c
show that the charter Of the water com.
pany gave o. ID ah exclusive franchise lol
the period Of thirty years Tho next dc
cision was rendered at the September tern
ol the Supreme Court, 1876, aud Is r.
ported IN sih Baxter. II was IN case o.
the City OF Memphis w. Memphis Water
Company. Judge Turncy delivered th,
unanimous opinion Of tho court IL wa
on the point OF q free supply OF water b,
the company for all municipal purposes
The opinion l. Of such Importance that {
b here appended;
"On the 18th of January, 1872, the cit,
aud water company entered into con
tract by which the city subscribed Tor !.
OoO shares. nsgrcglting SlUl,OJO, aud be-
ing one. half the capital stock Of the com
pany, thc company TO issue TO the city
certificate stating that tho amount sub
scribed had been fully paid i1t. The sub
scription has not in fact been paid, no
any part oi H.
"Ihe city undertook 10 rent from IN,
company not lcN than twelve fire hydmnt
on uu average for each mile OF mains u
main pipes that may be- laid down, aud q
many moro as the city, by its genera
council, may require, tho renting 90 b
/ Tor twenty years, aud NJ prices indicate,
/ iu tho contract, 10 bc paid nt the end u
each six months. The character aud "a
plciiy OF the hydmnls arc definitely pre-
! sunhcl.
"Thc frst inquiry l., was the conimc
on the part ui the city lor corporation pur
poses in contemplation Of the Water Com
/ nany's chaftcr2 We think not. as alrcad,
| shown, that company had the cxclusiy,
privilege OF iunishing water 90 thc city by
public works, aud Ia consideration ~
such privilege ID was obligated to iurnisi
/ Tree oi charge water Tor offices, hospitals
cxtinruIshmcnt of drcs, etc This condi
| don WIS for the benefit Of the city. an,
| intended To free 10. citizens from a taxation
otherwise dcyolying upon them. The cor
/ poratr authorities OF the city have u,
power other than that which is iDr the PRO
| lection Of the city anh the good OF its iu
habiauts. By the Expires terms ol ID,
| charter oi the Water Company. tho city q
prohibited from supplying itself aud citi
I IONS with water NV public works IAN,
water could b. supplied In no other wayl
"lly the subscription OF stock the cor
portc authorities have undertaken q
/ make the c.ty liable Cor the debts and con
/ tracts OF the company, anu To subject thu
citizens 10 the payment OF taxes Tor th,
purp1sc of discharring such debts an,
| contracts. II thorr bad been by the char
| tor no Inhibition upon the city To suppl,
/ ,.,f., hYt tL,t "A flurll duty had bgpn ipi