Morning journal and courier., 1891-03-17
BOARD OF ALDERMEN.


 for the purchase by the city of the water works, which has, said Alderman Hamil- ton, like an illegitimate child stirred up considerable trouble for the past two months. The matter, so far as the board of aldermen are concerned, now is killed, first by vote indefinitely postponing it, then by voting against a reconsideration of that action.
 The members of the board pricked them selves up with interest when Clerk Downes began reading the opinion of Corporation Counsel Driscoll whether or not this bill had been legally advertised. The opinion of the counsel was that the step taken did not come within the statutes. The fol lowing is the opinion in full:
 The Corporation COunseI's Opinion. To the Honorable Court df Common Council of
 the City of New Haven:
 GENTLEMEN-In response to your request, submit the following answers to the questions you have asked concerning the proposed bill de water Works:"
 First question-Is the proposed act an altera- tion of the charter of the city of New Haven, and if so, should not notice thereof have been given by advertisement in some newspaper at least three weeks before the first day of the session of the legislature, to which it was to be referred stating the proposed alteration of said charter?
 Answer-The proposed act is an alteration of the charter of the city of New Haven. A similar the "An act amending the charter of the city of New Haven and the New Haven Water company" ton ssi, general statutes revision of 1sss Which provides that 'No petition for the al heard by - the he general assembly unless public notice shall have been given by advertisement in ctyp s the wh'fs s three weeks before the first day of the session to which it is preferred, stating the pro-
 Second question-f notice is necessary, has it been given according to law?
 before my term of office began, and am in- formed by my predecessor, ex-Corporation Counsel Townsend, that no such notice has been given.
 Third question-Is the proposed act of an ad- versary nature, and if so, must it not be accom- panied by petition with a citation to the party to whom it is adverse to appear upon the second day of the session of the legislature?
 Fourth question-f the proposed act is of an tion therefor, with citation, be served upon the adverse party at least twelve days before the such other notice as may be ordered by judge of the superior court?
 Answers-In my opinion the proposed act is of an adversary nature. In answer to the inquiries 1 concerning notice contained in both of these questions, cite section as8 General Statutes, re ture shall be accompanied with a citation ! oCS ond day the session, and be returned 1 to the secretary on or before the first ay of said session; but it shall not be heard unless l an attested copy of such petition and citation ! shall have been left with, or at the usual place ! of abode of, all parties interested and not peti appearance, provided that where the adverse party resides out of this state, is absent there viduas, it shall be sufficient to give such notice l as any judge of the superior court may order tPraafS shall nnlpSS t0 secretary and docketed by him by the eighth ! day of the session.
 a character as to require notice in accordance ! could the court of common council by the pass age of any vote lawfully bring the matter before the present session of the general assembly? before the present session of the general assem- | ply, it would probably be rejected for want of the notices required in the two sections Of the general statutes cited above.
 Sixth question-What is the effect of the pro l vision in the proposed act for taking the fran chises of the Water company at price not ex- ceedng the fair and proper expense attending the getting of them from the legislature? cordance with the terms of the contract made 1 between the City of New Haven and the New Watsr in lSs uesons l answered together. In my opinion the provision at the end of section of the proposed act is not made between the City of New Haven and the ! New Haven Water company, in 1881; and the effect of that provision is to take the proposed ! act out of the scope of said contract.
 Section of said contract reads: Said compa- ny will sell and convey to said city all the prop | erty, assets and franchises of said company whenever, at any future time, said city shall choose to purchase the same, said city to pay a ! just and fair compensation therefor which com pensation, if said parties cannot agree shall be l determined by committee to be appointed by l the superior court in the manner provided by January session, 1884, under which act proceed ings between said parties were lately instituted
 From this section of the contract it will be seen that the city is to pay ''just and fair compensa tion for the "franchses'' as well for the other species of property of the water company, which ! compensation, in case of disagreement between l the parties is to be determined by a committed ! of the superior court.
 act reads provided that in de pany for it's franchises, property ant assets under said contract, the increased | or greater earnings or income of said company made or liable to be made in consequence of it, l having, through it's franchise or otherwise, monopoly CpracticalIy) of the right to distribute l water to, in or through the streets of New Haver ! shall not be included as any part of a basis or which to estimate the said compensation, and the value of said franchise shall not be estimated except at fair and proper expense attending the getting of them from the legislature from which it will be seen that compensation is not te | be paid for franchises the same as for other
 It is clearly shown that franchises are proper | oASSlololo, Enfield Toll Bridge Co. ys The New York and ment, known as species of property, as well as any estate in lands It property which may be
 bought and sold, which will descend to heirs, ,and
 tors; /" And People vs. O'Bren ct al, 114 New
 York, York p. 40, in which the court of appeals says
 securities based upon corporate fran
 numerous laws adopted in the several states providing for their security and enjoyment, and ! courts, state and federal, in which they have
 been upheld and enforced, there is no question
 but that in view of legislatures, courts and the public at large certain corporate franchise. have been uniformly regarded as indestructible by legislative authority, and as constituting l property ln the highest sense of the term
 The act passed in 1881, though for similal purpose as the proposed act, did not contain any such provision as is contained in section of the Cooperative Counsel l Immediately after the reading of the above Alderman Hamilton's motion wal carried to approve of the same and place 1t on file.
 After considerable skirmishing motion was made by Alderman Kelly that the wa
 ter bill be taken from the table, which
 was carried, and Alderman Chandler i'm | MeuldIely made U mOClOn that It De 1nOeh
 nitely postponed, and as an amendment
 Alderman Avis moved that it be referred
 to committee made up of two aldermen and three councilmen. The supporters o1
 the bill under MT. Avis made an up hill fight of it in favor of the amend
 1nent and at one time the feeling waxed
 warm One member told another he wal talking too much and was told in reply
 that he had right to talk as much as ht
 pleased. A yea and nay vote was taker
 on the amendment which resulted 16 to
 against it.
 The vote was then taken on the origina
 motion of indefinite postponment whict
 resulted in 16 for and 6 against. Those
 voting in the affirmative were: Aldermen ) Chandler, Hitler, Hamilton, Lowe, McKier
 nan, Doody, Keane, Andrews, Maley
 Bromley, Kelly, Beers, Sonnenberg, Prince
 Daley, Nolan. Negative: Cunningham
 Sheehan, Avis, Johnson, Callahan, Falsey
 When the vote had been declared alder
 man Hamilton moved a reconsideration
 which was lost. The corporation counse
 sent in a copy of the application of tn,
 New York, Bridgeport and Eastern rail
 road company, which has been served up
 on the city, asking for approval by tn,
 railroad commissioners of the layout of it,