The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1901-08-06

I la44 D- the CRY ever since the lrSL Gay OF
! October. 1SS3.
The provisions OF the above men
toned ordinance and the records OF the
! proceedings Of the mayor and council
respecting the same constitute the facts
/ entering into the contract between the
/ city and the Wichita Waterworks COM
/ pany the present owner OF the water
works.
IF ordinance number 266 is valid, and
/ constitutes q binding contract between the
/ city and the Waterworks company, the
following facts viii appear TO follow from
/ its terms ard the law relating 70 the
same. VIZ:
'First-That the franchise Of the Water
+ company viii expire at the end OF 20 years
/ from Septeu Der 18th. 1850. which VIII be
4 September 1s. 1872
~second-That the city has agreed TO
pay hydrsnt rentals or period OF Il
+ years from October I, 1SS3. which wiz be
+ until October !, 1904
'-Third-That the city VIII have the right
/ by giving the required notice 10 purchase
the waterw0rks under the provisions OF
the ordinance. on Nay IS 1913, that being
the end of the next period Of five years
CITY thar the works were completed
'Fourth-The city VIII have the right
TO purchase the plant by condemnatIEl
under the provisions OF the state law
ar the end Of the contract between the
city and the company for hydrant rentals,
which VIII be on October j, 1894
In determining the validity Of the ques-
ton OF the ordinance, il must be remem-
bered that prior 10 September, 1882, and
untn July 4, 1856. Wichita was a CITY Of
the second class, and ordinance number
Two hundred and sixty-six, which was
adopted in September, 1SS2, must be con-
strued and tested according TO the laws
governing cities of the second class. Par
agraph 7lS5 Of the General Statutes CT
1859. which was in force az the time the
ordinance was adopted. provides that
cities OF the first, second and third class
Of the state Of Kansas are hereby granted
fun power and authority on behalf OF
such cities respectively 10 contract for
and procure waterwor1s, 70 be construct
ed for the purpose OF supplying the in
habitauts Of such cities with water for
domestic use. the extinguishment OF
fires. and for manufacturing and other
purposes.
There are no prohibitions against cit
les Of the second class granting or max
Ing franchises or making contracts for q
period longer than twenty years. such as
are contained in the laws relating TO
the powers Of cities Of the first class.
The supreme court OF this state has in
the following cases upheld the right and
authority of cities of the second class
TO make contracts similar 70 the one con /
tanned in Ordnance No z56
WOOD IS National Waterworks compa- I
NJ 60 Kan. 5sl. z.
Burlington Waterworks company, VS.. !
Brlington. q Kan, rs. rs,
1Iauley rs. EuIen. 46 kan. 655.
Columbus Waterworks company VS.. I
Columbus. Sc Kan, Cos.
Columbus Watervorizs company VS.. (
Columbus As Kan, SO.
The state VS.. Water company g. Kan, /
5E
The circuit court Of appeals Of the
United States IN the case OF the Illinois
Trust and Savings Bank vs.. Arkansas
City. in reviewing these decisions OF the
supreme court OF Kansas SAYS. referring
10 Paragraph 7ls5 Of the General stat
utes Of aKnsas Of 1899. quoted above;
III IS saruIed by repeated decisions OF
the highest judicial tribunal of the state
OF Kansas that under this and other sec
ti0rs OF the statutes OF THAR state
city Of the second class has authority 20
grant q franchise to q person CT q cor
poration 10 establish waterworls n fur
nish the city and its Inhabitants with
water 20 gra1t the privilege 81 using rs
streets 90 q private corporation for such
q purpose and 90 agree 10 pay rental
90 Il for che use Of its hydrants. kan
Gen. Stat 1850 7S7. ST., 1441. 1f52. 71S5-7lso;
wood vs. National Waterworks company,
S kan, SEQ. Brliugton Waterworlls COM
oanv vs. Burlington. . Kan, rs Column
bus Tvaterw0rks company vs. Columbus,
6 Kan. 565, IS kan. 1)1. Is L. r. A. 354
These decisions conclude this question
here. when no question 0f general or
commercial law. and no question Of rignt
under the constitution and laws oS the
nation are involved. the federal courts
uniformly follow the construction Of the
constitution ard laws Of q state given
bv It's highest judicial tribunal This rule
is adhered 70 with marked tenacirT IN
rhe construction Of state statutes which
measure the powers and Liabilities az
political municipal organizations 81 the
state. MAIDEN VS.. Lancaster county q Z
s Ann. $50 SIS. i c. L.. a. SD. SD and
IS Fed Rep is. Ie3 and cases cited De-
troir IS. Osborne. is L. 5. AZ, fss. "a l.
"a PSI 12
This clty. then, had the riEht 70 srant
70 the sas company the privilege Of us
fnz IT'S streets for water pines and II
had tae power q rent hydrants II that
coura-y when this contract was made
Pr.t Il Is insisted that this contract e
beyond ths rowers cf this c.tv. ard void,
because il grants the right % use The
streets az the city 20 q water company,
ana promised u pay rental t1r the hy-
drants tor tve1rv-ola years TIE prop
os5tlo1 On which this contention rests
IS thar the members % the cry corn-l
are trustees tor the uIhii-; that they
exercise legislative powers and t12t they
can make 40 Erac- and conclude 10
contract wIlch viii Bind t1e clty beyond
The terms az their otlces aeCausa sg71
action would circ-Us-rihe che legislative 4
--v~ers Of their SUCCESSORS and deprive
-nr--7 az -he riet- 70 thelr urrest-ic-51 f
exercise as the exiE=Dciss 81 Lha time /
rfsht demand There are Two reasons (
vrv this proposition cannot ts success 4
f,l1v ~ irtzired Fl tbs ease.
Ff-st-It ignores the settled distinction 4
between the governments II P-tc and
-,e -~cn-ietarv OF business powers ~ q .
n-nf-.usritr ari enormously seeks 70 +
~---- p, r-, exercise ~ rle latter p --le .