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

there can be no doubt of the proper an
swer to the question. Every considera-
ton of economy and proper safe guard
ing the paVementS already down, and the /
lives of the citizens. dictates the pnr-
chase Of the present property of the wa
ter company, rather than tearing up the |
pavements, exposing the city to injunc
lions, damage suits and endless expen-
siye litigation, hazard to the citizens |
from exposed bitches, and needless dup /
LEGATION of mains and pipes where not /
needed But having come this far, the |
city is confronted with q new series of |
objections. Some say the city must |
wait until the franchise and contract |
expires with the doubt existing when /
they actually do expire. Some doubt the |
power to compel the sale at any time |
unless the city first makes an attempt |
to agree on a reasonable price, and fur |
Their doubt even then on the assumption |
that the power to condemn was not con-
ferred on the city until after the fran
ehise and contract was granted The
method is variouSly contended for as
under the terms of the ordinance (Sec
5. Ord, No. 400; under the terms of Sec
2, Oh. "a. Laws 1888; under the terms OF
CHI IS. Laws 1891 and under the terms of
Oh. 81. Laws 1897.
First with regard to the provisions of
the ordinance. 1t provides for the pur-
chase of the plant at an agreed value
not greater than the actual EQUITABLE
value thereof and "if the parties cannot
agree thereon" the value is to be ascer-
tanned by the district court upon the
petition of the city and in such manner
as the court may determine"
1t must be conceded that the parties
can not agree. The plant is mortgaged
Tor more than it is worth. The COM
pany, If willing, could only agree uDon
the value of its equity If any in it.
That an agreement with the company
alone would bind the bond holders
though debatable, is too uncertain and
doubtful to justify the city in dealing
with the company alone and paying out
a large sum of money on such an agree
ment. The bond holders are the as
slgnees of the company to the extent of
the amount OF their bonds, and must
be considered in that capacity
The trustee under the mortgage can
not agree to a. sale of the mortgage and
property for less than the debt and re-
lease the mortgage without the consent
of the bond holders, without making it
self liable to them. The receiver in
the action in the United States court
can not so agree, because by judicial
sale the property has vested in a pur-
chaser which mortgaged the property to
new trustee to secure new bonds pre-
sumably already issued, and the bond
holders themselves are inaccessible to
any such agreement They are scat
tered in England and elsewhere and the
bonds being payable to bearer, can pass
from hand to hand by delivery. The
city can not know where to find them
and can not ever be sure that they had
found the right holders
BY the ordinance the amount of the
incumbrance is to be deducted from the
value as agreed upon and the city is to
mold the company harmless. The in
cumbrance, however,is greater than the
| value and there is no provision that the
company shall hold the city harmless
There are no provisions in the or
| dInance for notice to the bond holders
or for making them parties to the petit
! ton in the district court They of course
took their bonds subject to the terms of
the ordinance, but their rights there
under can not be terminated by an
agreement to which they are not parties
or by proceedings of which they are not
notified as parties
With regard to section g CHI "a, Laws
OF 1883, 1t is only necessary to say that
| since it was passed after the ordinance
was accepted and the contract made,
| it can not be construed to be a part OF
| the contract. 1t is, however, a law OF
the state. if not repealed, and would be
applicable so far as not repugnant to q
previous contract relating to the pur-
chase of the waterworkS. Carefully con-
SIdered It simply provides for a method
of determining for the city the value t.
be paid for the property and provides
finally for contract to be entered into
between the board of engineers and the
water company. If they can not agree
and do not enter into the contract, nc
provision is made for compelling them
to do so, and the matter in the end is
left to be determined as provided in the
reasons why they can not agree are
stated above and do not need to be re
iterated further. It is repealed as We
shall see further on. However the pro
visions OF the ordinance and the act O
1888 only relate to an amicable purchas
of the works, the petition to the distric
court being only a provision for call
ing in an agreed arbitrator with agreed
powers, and whose action, when takel
is still the amicable action of the par
ties to the contract.
But in 1891 by sec. 4, Oh. 70, Laws O
1891, re-enacted substantially by Sec l.
Oh. 50, Laws of 1897, the city is give
power to acquire title to waterwork
property and all the rights, franchise
and privileges thereto pertaining, q
any time after the expiration of tel
years after the making of such gran
or contract, by a compulsory condemna
ton without regard to the previous pro
visions for amicable purchase.
The act of 1891 repealed sec. 2, CT
"a, Laws of 1888, and the act of 1897 re
pealed secs. ia and 1I5, Oh. %, Genera
Statutes 1868. Some criticism has bee
: INDUCED in, in some quarters as to tn
constitutionality of Oh. 50, Laws 1879
but I am unable to see any just groun
for such criticism. But Oh. 73, Laws {
1891 is not specifically repealed by i
, and if it should fall generally, the la
, of 1891 would stand intact
Sec II, Oh. Y, Laws of 1897 is praC
7 tically copy of Sec. 4, Oh. 70, Laws
=, 1891, and under familiar doctrine shoul
| De construed TO De a continuation
that earlier act and not a new enact
4 ment. The method provided in both aci
5 is the same and no substantial variatio
S of the procedure is necessary in ordt
that the proceeding shall be valid VI
= der either of these acts.
s These sections of the law provide Fl
Q a condemnation of all the property of Il
q water company, the property franchise
! as well as the tangible property of II
= company. The proceeding provides (,
I notice to everybody interested and wou
bind the bondholders and limit the
d claims to an equitable distribution of Il
t award paid in under the proceeding
The question when the franchise or Il
= contract of the company expires in sue
: a proceeding becomes inmaterial becau
u the city buys it, however long or sho
q it is, and it can be settled, if material,
f exceptions to the commissioners repoI
V If they enormously allow a value for t.
= | long or too short a period, the matt
n can be determined correctly by new cor
= missioners and new report. The que
IL VII he had