The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-09-25
ATTORNEY GENERAL CHILDS'
CHARACTERIZAT OF DULUTH
WATERWORKS MANAGERS.
WOULD FORFEIT A CHARTER.
HE FILES THE INFORMATION
ASKED FOR ny CITY ATTORNEY
BENHAM.
CAN NOT HEAR LAW POINTS,
He SAYS. I'm the Face of Such a
Terrible Menace to the Public
Health.

Duluths water works case will go
into the supreme court at once. At
toIney General Childs has determined
that the charges made by City At
torney Benham on behalf of the city
OF Duluth, are sufficient to warrant
him in bringing proceedings for the
forfeiture of the charter of the COM
rany and in the statement accompany
ing his decision. he does not mince
words at all in speaking of the neglect
OF the officers of the company to prop
erly care for the service they were
giving the community to which they
owe their franchise.
After rehearing the application and
the grounds on which it is asked, he
says: That the first ground is not
supported strongly enough to merit
serious consideration. The question
OF motive is dealt with as follows:
l am aware of nothing in the evidence
which can seriously be urged as indicative
OF an unworthy motive on the part OF the
city of Duluth in the matter. The alleged
inGiscreet remarks of counsel set forth in one
of the afidavits presented by the respondent
should not be charged against the city or
the city council l may say, however, that
dc not regard it as susceptible of the meaning
with which it las been invested by respond
ent's counsel.
It is undoubtedly the law that an informa-
tion should not be filed when the law fur
nishes another adequate remedy, unless under
special and exceptional circumstances. II is
urged that the city OF Duluth may enforce
or terminate this contract by an ordinary
action. and this presents the question whether
in this state a remedy enjoyed by party
other than the state is bar to the right Of
the attorney general to proceed upon his
own relation in a plain case of misuser or
non-user on the part Of a corporation Mr..
High says: The better considered doctrine,
however, undoubtedly is that the existence
Of a statutory remedy does not GUST the jul
risdiction of the court by quo warranto or
prevent the people from resorting to other
remedy to determine questions Of usurpation
of public Offices
The cases cited by counsel for the re-
spondent upon the question are, in my judg-
ment oyerborne by the great weight Of au-
thority.
The reserved right of forfeiture of eek
elusive franchises" for failure to supply good
and wholesome water, found in Section OF
the ordinance, not only is not an exclusive
remedy, but it is rendered imperative by
virtue of the decision in Long VS.. City of
Duluth, 40 Mimi. 200, wherein 1t was held
the city not authorized by its charter
to grant such exclusive privilege.
l am Of the opinion that whatever remedy
may be enjoyed by the city in the enforcement
of it's contract rights with the company, is
not a necessary bar to the filing of an iE-
formation by the attorney general
1t is urged by counsel that the acts al
legged do not constitute violation of the
franchise. but If anything, merely a viola
tion of the contract for which an adequate
remedy exists in ordinary legal proceedings.
l am unable to concur in this view. The
right to dig up the streets for gas pipes has
been held to be a franchise.
Repeated and willful conduct in supplying
the city and its inhabitants with unwhol-
some water, contaminated with the germs
of disease and other foul substances is such
an abuse of the franchise as to justify for
fixture.
Again, ii is urged that the acts of misuser
must continue to exist at the time of filing
the information, and it is also said that the
action Of the city of Duluth in relation to the
respondent subsequent to that time when the
alleged corporate msuser began, constitutes