The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-04-17
Judge Hook Says Water Rates
May Be Regulated.
New Rate Ordinance VIII No
Yet be Enforced.
WILL HEAR EVIDENCE.
City Must Show That Prices
Fixed Are Reasonable.
The Victory is an Empty, USE
less One.

The city Of Topeka won a. point in
the waterworlzs case pending before the
United States circuit court in a decision
handed down by Judge Hook Tuesday
afternoon. This decision is a con6rmse-
ton of one recently made by the Su =
prene court declaring that the city has
the power TO fix water rates. The ques-
ton as to whether the specific rates as
enacted by the Topeka city council in
this instance are right and equitable IS
still open and evidence will be taken up
on this point before the case is finally
decided.
Judge Hook reviews the case at length
in his decision, just handed down. as
follows:
In 1881 the mayor and councilmen OF
the city of Topeka a city of the first
class in the state of Kansas, adopted an
ordinance granting to the Topeka wa
ter supply company, q corporation or
Eanized under the laws of the state of
Kansas the right to construct, maintain
and operate in said city a system of
WaterWorks. A schedule of maximum
water rates to consumers was prescribed
in the ordinance. In 1856 the mayor and
councilmen of the city of South Topeka,
then a city Of the third-class in said
state, passed a similar ordinance in ia
vor of the Water Supply company and
provided therein that the schedule of
rates adopted by the city of Topeka
should govern. Both ordinances were
duly accepted by the Water Supply com
pany and the respective terms OF dur
alton thereof have not yet expired The
two cities were thereafter consolidated.
the contract obligations of the city of
South Topeka devolving upon the city
OF Topeka The property and franchises
of the Water Supply company subse-
QuentIy passed to the Topeka Water
company, a citizen of the state of New
Jersey, the complainant in this suit.
In December, 1897, the mayor and cOun-
cilnen of the consolidated city of To-
pexa passed an ordinance numb ered 1914
repeating that section of the first men
schedule of water rates and adopting in
lieu thereof a schedule of maximum
rates substantially lower than those
which first obtained. This suit is brought
against the consolidated city and the
city attorney to enjoin the enforcement
of the rates of 1897 1t is contended by
the water company, complainant, that
the first fixing of the rates of service
to consumers is an essential element in
the contract between the parties which
it was competent for the city to enter
into and the obligation of which can not
lawfully be impaired or set aside prior
to the expiration of the contract term.
1t is also alleged in the bill of complaint
that the rates OF 1897 are unreasonable
and not lawfully compensatory.
The question preliminarily submit
ted to the court is whether the city of
Topeka can under any circumstances
lawfully reduce the maximum rates first
fixed prior to the expiration of the term
of years specified in the original ordin-
anceS: in other words, is there a con-
tract between the parties that the sched-
ule first prescribed shall endure for the
life of the franchise granted, and was
it under the laws of Kansas within the
power of the municipal authorities to
enter into such a contract
The question SO submitted should be
resolved in favor of the city under the
authority of the decisions of the supreme
court of the United States announced
March 25, 1901 in the following cases:
The Freeport Water company vs.. the
City of Freeport.
The Rogers Park Water company VS..
Fergus.
The Danville Water company VS.. the
City of aDanville.
There sim remains undetermined the
contention set forth in the bill of COM
plant that the new rates complained of
are not compensatory. and that the
dinance of 1897 is therefore void. Upon
this question the testimony has not been
taken. and the case is therefore held for
further consideration touching such mat
ter. WILLIAM HOOK. Judge
Ex-City Attorney Bird, who had charge
of the case, says he is satisfied that the
city will be able to show that the rates
fixed in the new ordinance are not excess
i've.
The waterworks officials say that the
decision Will have no effect because they
viii be able to show that the rates fixed
in the ordinance are unreaSonably low
There is little likelihood, in any event,
that the points at issue can be decided
before the city acquires the ownership
of the plant. The decision simply follows
that handed down by the federal court
frrrra rrrr,1 ~. he f11r.i-