The Saint Paul globe. (St. Paul, Minn.) 1896-1905, 1896-09-22
SecOnd-Class Kansas Towns Grant
No Exclusive Franchises.

The following syllabus of the United States
circuit court of appeals in the cases OF the
Illinois Trust and Savings bank, trustee, APP
pellant, against the city of Arkansas City,
Kan, appellee, and George e. Hopper, re-
ceiver, appellant, against the city OF Arkansas
City and the Illinois Trust and Savings bank
trustee, appellees decides some important
points, the principal one being that cities Of
the second class have no power to grant pri-
vate parties the exclusive right to use their
streets:
under the laws Of the state of Kansas has
power to contract with a private party for
the construction and operation OF water works,
to agree to pay rent for the use Of hydrants
and to grant to such a party the use of its
streets for the purpose Of laying pipes to
conduct the water, but not to grant the ex-
elusive right to use its streets for that pur-
pose.
The invalidity of the exclusive grant by q
city of the right to use it's streets to conduct
water to its Inhabitants is no defense to an
action for the rents the city promised to pay
to the grantee for the use of the hydrants
after the works have been constructed accord
ing to the contract and have been accepted by
the city.
No one who does not infringe or threaten
to infringe the exclusiyeness of such a grant
can be heard to alege it's invalidity, after
the works have been constructed and the con-
tract has been substantially performed by
the grantee.
The members Of the legislative body Of a
city may not so act or contract as to de-
ercise of the legislative or governmental
powers conferred upon the body for the pur-
pose of ruling the Inhabitants Of the city.
But this rule is inapplicable to the exercise
OF the business or proprietary powers OF the
municipality conferred upon the legislative
body of city for the private benefit of its
inhabitants and itself as personality, rather
than to enable it to govern its citizens
In the exercise of these municipality is
governed by the same rules as a private
poration or an individual. and 1t may make
contracts for terms longer than the terms Of
Office of the members Of It's legislative body.
After going at some length into the Kansas
statutes the decision continues, speaking gen.
orally:
The presentation to the city council Of
city in open session by private party who
is named as grantee in defeated ordinance
upon its records of a written acceptance of
the terms of the ordinance and bond to
construct water works accordingly, the con-
struction Of the works and the location of the
MIGRANTS by such grantee under the direction
OF the city council, the actual acceptance and
use of the works by the city when completed,
and the passage by the city council of
formal resolution that the water works erect
ed under the ordinance accepted by the
the city and the grantee in the ordinance for
the construction and operation Of the water
works according to its terms.
No one may, to the damage of another,
deny the truth Of representations, by which
he has purposely or careessly induced that
other to change his situation.
AS against the bondholders who loaned
their money on mortgage of the plant and
income OF water works owned by the mort
gagor, which had been built under the direc-
ton and accepted by the formal resolution of
the city council of a city completed accord
ing to the terms of a defeated ordinance, upon
Its records and for which the city had paid
rental without protest for fourteen months
according to the terms of this ordinance, such
city is estopped to defeat a recovery for the
rents subsequently accruing according to the
terms Of the ordinance, either on the ground
that there was no contract, or that the city
had no power to contract for twenty lone years
or that 1t had no power to grant to the water
company the exclusive right to use its streets
for laying water pipes.