The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1897-06-07
DID THE WRONG THING
Supreme Court Decides That
the City
Took the Wrong Course in
the WaterWOrks Suit.
Consequently Has Fallen Down and
Bumped It's Nose-Now it Has
to Be Done Over Again An
other Way.

The decision of the supreme court Sat
urday affirming the decision of the Shaw
nee district court indicates that the city
was not proceeding along the correct lines
to secure a forfeiture of the water com
panys charter and franchises. To dis
pose of the controversy arising over the
Interpretation of a certain clause in the
contract pertaining TO an extension of
the company's mains, the court holds that
the city should have proceeded in man
damus suit rather than in a suit to Sc
cure from the supreme court an order
compelling the company to give up its
rights and privileges.
Because of failure to extend certain
mains the city held that the company
violated the provisions of its charter as
well as the contract under which it is
being operated. The city also alleged that
the company was furnishing impure wa
ter and from such a condition sought re-
lief in the district court. Failing there
the city appealed to the supreme court
and has met a second defeat in the litiga-
ton against the corporation which in the
judgment of the people of this city has
departed from the legitimate lines Of
business policy and lacks much of giving
to the patrons of the company the service
which is provided for in the many con-
tracts and franchises held by the water
company.
In the syllabus of the opinion, written
by Associate Justice Johnston, appears
the following language:
Courts are extremely reluctant to adj
judge fOrfeitures of corporate privileges
and franchises, and being vested with
some discretion in proceedings brought
for that purpose will ordinarily only do
so where no other adequate remedy is
available.
"Mandamus may be employed to COM
pei a water company to extend its mains
in city, where under contract between
the city and the company it is the duty
of the company to make such extern
sion
Stating the grounds upon which the
suit was brought and citing that the
whole case embodied only a dispute as
to the Interpretation of a certain clause
in the contract Judge Johnston says in
his opinion, which is concurred in by all
the justices:
THE claim was made by the city and
denied by the company that the city
might at its opinion require the laying of
additional mains over any of the unoc-
cupied streets. Because of this dispute
and refusal the city asks an absolute an
nullment of the contract and q forfeiture
of all the franchises and privileges under
which the company is operating.
Under the contract a large and expen-
sive plant has been constructed. which
has been in operation for about sixteen
years. There are many important stfpu-
lations in the contract other than the one
in controversy which have not been mem
toned and out Of which large and vaIua-
BILE property rights have grown.
1T appears that a bona hde DISPUTE
has arisen over the Interpretation of
single provision, but should It be settled
in a proceeding for an absolute forfeiture.
and should the denial of the claim of the
city in one particular be visited by the
extreme penalty of death?
The controverted question is an i'm
portant one to the city and to its inhabit-
ants. and if the Interpretation placed up
on it by the city be the correct one, it is
entitled to a prompt and effectual rene
dy- The law, however, does not look with
favor on forfeitures and it would appear