The Iola register. [volume] (Iola, Allen County, Kansas) 1875-1902, 1896-04-10
JUDGE srILLwELL's OPINION.
Full Text of the Opinion Given by Judge
Stillwen In Rendering His Decision
in the Gas Case.


ordinance under which the Co-Opera-
tive Gas Company was organized was
of much Importance to all the parties
concerned, Judge Stillwell devoted a
great deal of time to its consideration,
and wrote out his opinion with much
care. He has kindly furnished the
REGISTER with copy of this opinion
and we are glad to be able to present
it In full:
In the District Court of Allen Coun-
ty, Kansas.
The State of Kansas, on the
Relation of X. II. Bennett,
County Attorney of Allen
County, Plaintiff.
VS..
The City of lola,
Defendant.
This is an action brought by the
State of Kansas Oh the relation Of the
county attorney of Allen county,
against the City of lola, to GUST said
city from the attempted exercise OF
certain alleged unlawful acts of cor
porate power. The substance of the
charge made by the State is stated in
the petition as follows:
"That for the space of more than
one month last past, the said city of
lola has exercised, and still does ex-
ercised, without any warrant, grant,
charter or authority of law, the fol-
lowing liberties, privileges, franchises
and corporate powers, to-wit: That
of consenting to and authorizing the
occupation and use of all streets, al
leys, avenues and public grounds of
said city by private persons, firms
and corporations, by laying pipes and
conduits and digging and extending
trenches therein for the sole purpose
of enabling said private persons to
supply themselves, and said private
firms and corporations to supply their
members and stockholders with nat
ural gas for their own private use
and benefit, without requiring said
persons, firms and corporations to in
any manner serve or compensate the
public, or to supply said city, the
citizens of said city, or any OF them,
with said natural gas"
The city by its answer alleges, in
substance, that the acts it may have
performed were i'm the lawful exercise
Gifts corporate power and privileges,
and it attaches to its answer copies
of three several ordinances enacted
by the council of said city concerning
the subject matter in controversy IN
this action. OF these, ordinance No.
33I is the particular one which is
claimed by the State to be an unlaw-
.. Il &C. x1rhi
nance, in so far as it is material to the
present inquiry, is as follows:
"That any Cooperative Company
or Cooperative Corporation organic
ed under the laws of the State of Kan
sas, having its office in the city of
lola, Kansas, may lay, maintain and
extend trenches, pipes and conduits
through the streets, alleys, avenues
and public grounds of said city, and
may take said pipes up for the pur-
pose of changing, altering or repair
ing them from time to time as the
necessities of the case may require,
for the purpose ofsupplying its stock
holders and members with natural
gas"
1t has been shown in evidence that
corporation has been organized,
with its place of business in the city
of lola, ofthe name of 1.-The lola Co.
operative Gas Company" and the
purpose for which this corporation
has been formed, so far as its power
and purposes are involved in this
action, is, as provided in its charter,
as follows: "To supply gas for light
or heat to the stockholders of this
Company" 1t has also been shown
by the evidence that this Corporation
is intending to proceed, under the
power claimed to be conferred by
said ordinance No. 331, to carry out
the aforesaid object and purpose of its
organization, as stated in it's charter.
The question presented for decision
as 1 understand it, is whether the
city of lola has the lawful power and
authority to confer on private indi-
viduals for a private purpose the
right to take possession of the public
streets of said city, to the extent and
in the manner and for the purpose
specified in said ordinance.
1t may be said, in the first place.
that the only lawful use to which the
public streets of the city of lola can
be subjected, must be a public use.
u0 IlIlo W SdiO S6Io0tS Is N0eIeU Dy
law in the county, in trust for the
public. Any attempted city legisls-
ton which seeks to confer any right
or interest in this public property in
certain number or class of individ-
uals to the exclusion of the general
public, must necessarily be unwar-
rantod and in violation of law. The
vital principle underlying the
whole body of the doctrine of eminent
domain is that neither public nor pri-
vate property can be taken for mere
private use And it is by the appli-
cation and enforcement of the rule,
which exists in all civilized govern
ments, that private property can be
appropriated for a public purpose,
that railroads, highways, telegraph
and telephone lines, and numerous
other public agencies and institutions
have been constructed ana are in ex-
istance.
But the exercise of this attribute of
sovereignty can only be invoked in
behalf of the general public, and it
can be laid down, as a rule which alb
solutely permits no exception, that
neither property already vested in
Il