The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1901-08-06
CAME AS A SURPRISE
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class. it is controlled by no such rule.
| because it is acting and contracting for
the private benefit OF itself and its inhab-
itants and it may exercise the business
powers in the same way and in their
exercise It is also governed by the same
rules that govern private individual
or corporation. Citing a number Of au-
thorities.) In contracting for waterworks
to supply itself and its inhabitants with
water the city is not exercising its gov
ernmental or legislative powers, but its
business or proprietary powers. The pur-
pose Of such a contract is not to govern
its inhabitants. but obtain a private
right for the city itself and its denizens.
Second-The powers granted 70 this
city by the legislature of the state OF
Kansas to contract for and procure
waterworks are plenary and unlimited
save by the duty to exercise them with
reasonable discretion, and it is not the
province of a court to contract or clip
tho legislative grant. The words Of that
grant are: Full power and authority
to contract for and procure waterworks
to be constructed for the purpose Of
supplying the inhabitants of such cities
with water" 1T cannot but be clear TO
all who are familiar with the condition
Of cities of the second class-cities whose
population was between 1000 and 1900
in the state Of Kansas. in 1872, when this
grant was made, that 1t was not the in
tention OF the legislature Of the state to
limit the terms Of these contracts to the
single year during which the terms Of
Office Of the members of the city coun-
ell continued TIE cities were young
ana poor, but they were ambitious and
sangline They did not have the ready
money to construct the waterworks
which the health and comfort of their
inhabitants required. Il is hardly pos
sible that any individual or corporation
could have been induced to expend the
thousands of dollars required to con-
struct such works as have been built
IN this city in consideration of the right
TO use the streets Of the city for that
purpose, and Of the promise of rentals for
its hydrants for The limited term of a
! single year. These facts the members
of the Legislature must have known, and
they undoubtedly granted this plenary
! power to the contract for the very pur-
pose Of enabling the cities to procure a
supply of water for their inhabitants
| by grants or privileges to private parties
! to use their streets for that purpose for
a reasonable term of years, and by
/ covenants to pay rentals for hydrants
| for Ike term. In any event, the leg
| islature made this grant. and It thereby
! vested in the mayor and council of the
! city the right to make such contracts
for such terms as, in their discretion,
they though proper.
eff, upon general principals, there was
| any doubt that the defense of ultra
! wires, which has been considered, could
| not be maintained in this suit. the re-
| peated decisions Of the highest judicial
! tribunal Of the state of Kansas, upon
! these questions would compel that con-
/ clusion. In Burlington Waterworks com
/ pany VS.. Burlington, Supra, the city OF
! Burlington had granted to the water
works comptny the right to use it's
! streets for twenty years. but had re-
versed the right to buy the works at an
! appraised value at the end of each five
/ years, and had agreed to pay rental for
! a certain number OF hydrants meanwhile.
/ The supreme court OF Kansas said: In
/ our opinion, cities of the second class
/ have the right and the power 10 provide
/ for supplying themselves and the inhab-
/ itants of such cities with water in the
manner in which such right and power
were exercised in the present case, and in
various other Ways Kan, 72S.
In support Of his opinion Mr. Helm also
/ cites the cases Of Manley VS. Emlen; the
/ Columbus waterworks company VS.. Co
] Inv I,r-- 49,
/ Water company, VS.. Fergus; The Dan
/ vile Water company Us. the City Of
/ Danviile and also the decision OF Judge
/ Hook in the United States circuit court
! for the district of Kansas in the case
/ Of the Topeka Wsterworks company VS..
| the city Of Topeka, to establish by ordi-
/ nance new reasonable maximum char
/ ges for the use of water
/ Without quoting from thes. decisions
/ it IS sufficient 70 say that they completely
+ uphold the authority Of the city TO make
/ and enforce such new rates AT any time
( before the end Of the term OF the water
works franchise. and either Or both Of
i the above remedies are available 70 tho
city at the present time. WITH this ex-
/ ceptfon. however. thst in case the city
/ decides to construct and operate It's own
system Of waterworks and no satisfac-
/ tory agreement can be made for the pur-
/ chase Of the plant Of the Wichita Water
| company. the city would probably be IL
I able TO the Water company for hydrant
rentals contracted for until October Z.
I 1904. which vii Be the end OF the twenty
! one years contracted fer by the city IN
! der the terms of ordinance number 20.
/ Very respectfully submitted,
A 2 HELM. City Attorney.