The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1900-06-26


to get an answer from the water com
pany, and I believe a committee should
be appointed from this club to act with
the council in securing an answer 10
Mayor Drew's propositions. I move
that such a committee from the Com
mercial club be appointed.
Pending Mr.. MacLennan's motion
Councilman J. S. Warner said: AT the |
last meeting Of the city council the !
waterWorlSS company was instructed to |
call on Mr.. O'Neil and see what infor- |
nation could be received The commit |
tee did wait on Mr.. O'Neu and he stated l
that he had written Mr.. Street and |
would follow it that day with a tele- |
gram. Mr.. Shaw tells me tonight that |
Mr.. O'Neil has heard from Mr.. Street |
and that he will be here very shortly /
Councilman Hughes-I understand
from Mr.. O'Neil that Mr. Street will be
here probably this week.
Mr. W. H Davis-If Mr.. Aust1nS
argument is sound reasoning, and be-
Iieve it will be accepted as such, don't
see what can be gained by comforting
with Mr.. Street. If the water company
has nothing to sell, we are only vast
ing time in trying to buy it. I believe
a committee of lawyers should be ap-
| pointed to cooperate with the city at
torney in reference to carrying out the
suggestions made in Mr.. Anstin's paper.
| As substitute to Mr.. MacLennan's mo-
ton I move the appointment OF such
| committee of lawyers.
| This substitute to Mr.. MacLennan's mo
/ ton carried und0lIQOUSlgv anu a SOiAA-
mittee will be appointed by President
Holman.
Mr.. P. I. Bonebrake said that the wa
| ter company could advertise and gather
| in it's bonds by proxy. the same as the
! Santa Fe company did at the time of
| the reorganization. One of the reasons
| given by the water company for not be-
ing in position to talk of the sale of
the plant was its inability to get in the
| bonds, many of which are scattered
over Europe
Councilman Hughes asked if property
! in the hands Of a United States court
! could be condemned. In answer MI
Austin said that the sale had been con-
tirmed, the deed executed, and the pro-
perty turned over to a grantee and by
him through a mortgage to a trustee,
and to all intents and purposes the re
ceiver had no right to the property He
| explained that he was retained because
of obligation involving the old company
and said that condemnation proceedings
could undoubtedly be carried out.
City Attorney Bird-Mr. Austin's
ideas, in the main, meet with my un-
bounded approval Two years ago
wrote a resolution authorizing the city
attorney to commence proceedings IN
the district court to condemn this pro-
perty. The condition met with then is
the same as exists nova United states
receiver is in possession OF the property.
This notwithstanding that the sale had
been confirmed, the deed executed, and
the property transferred to the grantee
! reason,
! to first get rid of the receiver IS par
ticularly appropriate. At that time it
| was decided that if the action was COM
menced it would at once be removed to
the United States court. and in the
event of defeat, it would be taken on
appeal to the United States supreme
court, and there would remain until
long after the expiration of the fran
chise. The mayor and council have for a
long time been trying to meet the water
} works people and talk over the purchase
of the plant, all efforts in this direction
: have been fruitless. Personally, I am
| not in favor of two water plants in this
: city, and would rather condemn this
! property if it was possible. But the peo-
pie of Topeka have declared that they
, want a water plant of their own, and
the council means to act accordingly.
Mr.. P. I. BOnebrake asked if in the
; event the city went ahead with the con-
I struction of a water plant and at the ex-
piration of the franchise the water
company came up with q proposition to
5 sell the present plant, would the city be
5 compelled to extend the franchise
= Mayor Drew said there was a hundred
reasons why the city would never have
= of failure to comply with its require
3 merts
! TEXT OF MR.. AUSTIN'S OPINION
To the Topeka Commercial Club
I Gentlemen:-In 1881, the mayor and
n | council of the city of Topeka were auth
p orized to make all contracts in relation
q to the property and concerns of the city
o necessary to the exercise of it's corpor-
: ate or administrative powers (Sec. 2 Oh
f 81 Laws 1881. They had power to en-
q act ordinances not repugnant to the con.
- stitution and laws of the state, (Sec. Il
f Oh. 81. Laws 1881 they had power t
v grant to any person or corporation the
# use Of the streets for the purpose of lay
d ing water pipes to be used in supplying
the city and inhabitants with water un
e der such restrictions as shall protee
t proper remuneration for such grants
d (Sec. ia and us, Oh. %, general statut,
O 1858, 23d subdivision of Sec. II and Sec
It 81: Laws 1881 and they had power t,
= contract for and procure waterworks t,
e be constructed upon such terms as ma,
e be prescribed by ordinance for the pur
pose of supplying the inhabitants of tn
IT city with water for domestic use tn
,e extinguishment of fires and for manu-
l. featuring and other purposes. (Sec
n ia and rs, Oh. g. general statutes 1855
lie Sec. 1, Oh. 208 Laws 1872 and Sec. 81
lie Oh. 81. Laws 1880.
y In pursuance of these powers the cit
y passed the ordinance of September
2 1881, the Topeka Water Supply compan-
l. accepted it, constructed its works, tn
IF city has used them, and paid for sue
ID use during the past and these work
le and franchise have by various transfer
"a become the property of the Topek
ie Water company, the present owner. lot
ID W1thStand1ng the recent litigation If
" rather late as well as preposterous t
claim that the present water compan
" IS not the owner of the franchise an
y water plant, or that the city is nc
d: bound by it's contract.
ot The question when that franchise an
e contract expires is beside the preser
10 emergency. However, the law then sta
y, ted that no franchise for such purpos
y or contract shall be granted or exten
~ for a longer period than 20 years C2s
lg 1891 a1d Sc - ~ o. o. 1oo1 - y
III section 1 of the ordinance the frar
a chise is expressly limited to the perio
,o of 20 years from and after the date
.e the passage of the ordinance which Wa
ne September T. 1881 Ordinance No. 40
~ page 1913. Rev. Ord. By section IL
he contract is stated to continue during II
III term of 20 years and during the term
~ any extension of the franchise.