The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1896-04-10

City which attempts to infringe, or
encroach upon, in any manner, this
right possessed by all the public for
the private benefit and advantage of
a mere fraction of the public, is an at
tempted taking of public property for
a private use. 1t is not disputed
that the city might construct other
public agencies along or in the streets
so long as the same do not destroy or
materially impair the existing public
use. The city might authorize the
building of street railway upon the
streets, but such railway would be
required to carry erybOdy that had
the money to pay the fare, and it
could not lawfully be constructed for
the mere purpose of transporting to
and fro upon the streets only such
persons as were stockholders in such
railway corporation
The city might also authorize the
construction of telegraph or telephone
lines along its streets, but the COM
panies or corporations to whom said
privileges might be granted would be
under the necessity of operating their
lines for the use and benefit of all the
people, and could not legally erect
/
less such was their object and pur-
pose.
But by the aforesaid ordinance No.
331 it is expressly provided that any
company. or corporation therein con-
templated may enter upon the public
streets and grounds of the city, take
possession of and use them in the
mahner therein provided for the
specific purpose of supplying only
''its stockholders and members with
natural gas" And the charter of
the company which Is proposing to
commence operations under this or
dinance also expressly provides that
the purpose for which it is formed,
ESQ far as such purpose is involved in
this proceeding,) is ''tO supply gas
for light or heat to the stockholders
of this company"
Under the very terms of its charter,
1t has no authority to supply gas for
light or heat to any person living in
the city of lola unless such person
first becomes q stakeholder in the
company, with all the possibilities
the law attaches to that relation.
All the people residing upon any
particular street in the city along
which the company might extend its
pipes, might not legally be able to
compel the company to furnish them
foot of gas for use in their dwell
| ings or stores, for the reason that it
might appear from an inspection of
the records of the company that such
citizens were not stock holders in said
company. Can it fairly or reasonably
| be insisted that such company or
corporation can be created for the
purpose of carrying on an alleged
public agency or business of such
character that it is authorized to ap-
propriate the public streets for that
| purpose, and in the same breath say
that it cannot legally furnish soil
| tary member of the public with gas
for light or heat in his dwelling until
he first sequesters himself from the
general body of the public by becom-
ing stockholder in the corporation
itself? For my part, entertain not
a particle of doubt that ordinance No.
331, which attempts to bestOw on cor
pOrations or companies the powers
therein specified for the purpose only
of accommodating their own stock
holders, is not warranted by law, and
the city cannot legally undertake to
confer such powers.
| 1t was suggested in the argument
on behalf of the city, that if it had the
power to pass the ordinance in ques-
ton, then, any mere Irregularities in
the enacting of the ordinance, or in
the exercise of its power, could not be
inquired into in this action for the
purpose of ousting the city from the
exercise of the powers sought to be
conferred by the ordinance That
proposition may be ,enceded, and
therefore 1 pass over, as not proper
for consideration in this case, the
testimony which was introduced
tending to show that some members
of the city council, who voted for the
passage of the ordinance, were pecu-
nIarily interested, as members OF the
lola Cooperative Gas Company, in
the passage of said ordinance. But
the important question in this case is
not one of mere Irregularities inter
vening in the exercise of conceded
and lawful power, but it is matter
of an absolute want of power OH the
part of the city of lola to authorize its
public streets and grounds to be TAX
en- or appropriated in any way for a
purely private purpose.
shall not stop to read from the
numerous decisions of the courts
which might be cited in support of
the views herein presented. In my
opinion, the Supreme Court of this
State, in the case of Mikesell Y. Dur
kee g. Stout. "a Kan. 500, has settled
the question involved in this action.
adversely to the contention of the de-
PENDANT herein. See also State v.
Murphy, 81 s. w. 7S4; Adams v. Ohio
Falls Car Co., 81 n. E. So; Gustafson
v. Hamm, 81 n. w. 1854, and Field v.
Darling, 81 n. E. $50.
| Judgment will therefore be render
ed that the city of lola be, and here
| by is, ousted from the attempted ex-
ercise of any alleged corporate power
assuming to confer on any Gas Com
pany, or Cooperative Gas Company,
the power sought to be granted by
said ordinance No. 33l, for the pur-
pose of enabling such companies or
corporations to supply their own
stockholders and members with nat
ural gas. Plaintiff will also recover
| of the defendant its costs.