The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1901-07-17

is strongly the other way, and thinks
that the act of 1888 is the best. what
ever plan the council wants to adopt
Mr. Troutnan moved that the city
attorney be given full power to proceed
against the water company as ne deem
ed best. This motion was subsequently
withdrawn.
Short speeches were made by several
councilmen, expressing confidence IN
the work of the city attorney, ana ao-
vocating the 1881 ordinance
The motion to proceed by the original
ordinance OF 1881 was made by councll-
man James S. Warner, and was passed
unanimously.
Both City Attorney Spencer and At
torney G. c. Clemens assert positively
that the fact that the city has voted
SAC 900 worth of bonds to purchase the
waterworks or build a plant IS OF no
weight in the present situation
They hold that this bond election was
illegal from the start. and that bonos
never could have been issued under
the election which was held in 1899. In
order to get money to buy the water
works. new bond election Will nave
to be held.
Speaking of this matter, Mr.. Clemens
said: 1.-The old bond election never
amounted to anything, and viii not De
considered in any way IN the present
situation. The bonds were voted before
the city knew how much the plant
would cost. That fact would inyalldate
them. They were voted on the theory
that the city could build its own water
works, which it can not do That WouAd
also invalidate the election.
City Attorney Spencer said: -Attor-
neys generally agree that the old wa
terworks bond election was illegal.
Ronds could not be issued under that
election An alternative was provided
in the purpose for which the bondS
might be issued, either to build new
plant or buy the old one, and alter
natives don't go in voting bonds. Inc
old bond election was an entirely IN
dependent transaction from the pres
ent negotiations, and viii not nave any
weight with US now
advice of w. A. S. Bird who was then
city attorney. It is difficult for the
people who voted for the proposition
an overwhelming majority of the voters
TO understand this constant quibbling
of lawyers If it was right to vote the
bonds two years ago they must sun
be good. It looks very much as II the
citizens are being hoodwinked by some
one
The original franchise does not pro
vide for any appraisement OF the plant
by engineers. It does provide way by
which the city can escape unframed
from the 81, 500 900 mortgage which is
held on the plant by the Atlantic Trust
company-but this point has already
been decided in other cases.
City Attorney Spencer admits rnat
the most serious question under the
1881 ordinance is whether the district
court has Jurisdiction in the case. He
says: Il believe that the water conf
pany will not dare to challenge the ap-
plication of this ordinance to the case
because if it does. it stands absolutely
without any franchise, for the fran
caise was granted by this ordinance.
The sale and transfer of the property
can be enforced by the district court,
and the rights of bondholders can be
protected. This could not be done I'M
der the 1888 ordnance
NJ iT1 n
company is likely to transfer the case
from the district court to the federal
court The proceedings do not have to
be commenced till 20 years from the
date of the completion of the water
works plant. instead of 20 years from
the granting of the franchise This sets
the limit at about July, 1902, instead of
September T. 1901. The records show
that the water plant was formally ac-
cepted in July, 1882.
The following is that portion of the
ordinance of 1881, under which the city
will proceed against the water COM
pany for the requirement of the plant:
After twenty years, the city of To-
peka hereby agrees and obligates it
self. after 20 years from the compile
ton of said works, to extend the fran
chiSe herein granted to said company
for the further term of 20 years or to
acquire and become sole owner of said
works including all extensions and en-
1argementS thereof and everything of
every nature and description belonging
or pertaining thereto. on paying there
for the fair and equitable value there
of, to be ascertained, if the parties can
not agree thereon, by the district court
of Shawnee county upon the petition of
the city, and in such manner as the
court may determine; provided, thar
the party serving such petition shall
have served a copy thereof upon the
other party at least Is days before the
day of such presentation. In case Of
purchase of said works by the city,
the company shall be required to make
execute and deliver good and sufficient
conveyance of title to said works to
the city, clear of all incum brances ana
liens; provided that if any such in
cumbrances and liens shall be left
thereon by said company, then the full
amount of such incumbrance and lien
shall be deducted from the amount Of
the full price to be paid by the city to
the company for said works, and the
city shall hold the company harmless;
provided, that the city shall not be
deemed or held liable for a. greater sum
than the actual equitable value of said
works; and in case the city shall not
purchase and become the owner of said
works at the end of the first 20 years as
herein provided, then and in that case
it shall in like manner be required to
purchase the same at the expiration of
the second third and fourth 20 years
or extend their franchise to said colr-
pany at the end of each of said terms
for the then next 20 years"
RUNNING BEHIND.