Omaha daily bee., 1902-12-23
ON TELEPHONE TITLE
County Attorney Holds Nebraska Company
Has No Franchise in City.
SAYS THE PROCEEDINGS WERE IRREGULAR
Brings Up same Point of Law the Com
paDy Itself Raised Against validity
of nm II City
of linden

rs the franchise under which the Ne
braska Telephone company operating in
Council Bluffs a valid one?' This is the
question which County Attorney Killpack
has decided to ask the courts to deter
mine. The county attorney contends tina.
the company has not, and, in fact, never
did have, a valid franchise, and yesterday
served original notice OF an action in quo
warranto in the name Of the state Of Iowa
against II.
The notice Of suit, which was served on
A, p. Fair, local manager Of the Nebraska
Telephone company, yesterday afternoon,
sets forth that action would be brought on
the grounds that you are wrongfully and
illegally using and occupying the streets,
alleys and public grounds Of Council
Bluffs with a telephone line and system;
that you are asserting and exercising the
rights and privileges of a franchise for a
telephone. system in said city while in
fact you have no franchise or right Of any
kind to use the streets, alleys and public
grounds Of said city, and plaintiff will ask
to have you ousted from such public
grounds"
County Attorney Killpack, when asked on
what grounds he based his contemplated
action, stated that he commended that the
ordinance granting the Nebraska Telephone
company a franchise had not been passed
in the manner required by law, and that,
therefore, the franchise was null and void.
There was nothing. he said, in the rec
ords Of the city council to show that a
roll call had been taken on the passage
Of the ordinance, and that there was no
record Of the yea and nay vote as required
by law. Mr.. Killpack said he had ex-
amined the records Of the proceedings Of
the city council and that while the roll
call may have been taken, and probably
was, on the passage of the ordinance there
is no record Of the vote. The failure to
record the yea and nay vote, the county
attorney holds, was fatal to the ordinance
and the franchise granted by it. The or
dinance conveying to the Nebraska Tele-
phone company a franchise for an indef-
mite number OF years was passed by the
city council October 8, 1888.
Hoist by own Petard.
At the January term OF the district
court in this city in the case Of the Town
of Minden against Henry Hesley. in which
1t was sought to impose a fine upon the
defendant under an ordinance, the defend
ant commended that the ordinance was null
and void for the reason that the records
Of the city council failed to show the yea
anu nay NOle at tue llm6 OI llS pdSSdBes db
required by law. Judge Thorneli sustained
the contention and ruled that the ordinance
had never been properly passed and. there
fore, was Of no effect. 1t is on this ruling
that County Attorney Killpack bases his
action against the telephone company.
When asked II this action was being
brought at the instieation Of parties in
terested in any Of the proposed new In
dependent telephone companies. Mr.. KILL
pack said II was not, and that. he had
decided to bring the suit for the public
welfare" He stated that the petition
would be filed on or before Friday Of this
week. in time for the January session Of
the district court, over which Judge Thor
nell will preside. at will be no fault of
mine II the suit is not tried at the next
term" remarked Mr.. Killpack. He said
further that he was determined to see
whether the company had the right to con-
tinue to claim everything in sight and out
Of sight, and charge the public exorbitant
rates for an Indifferent service.
This action on the part OF the county
attorney at the time when the air is full
OF rumors OF independent telephone COM
panies proposing to enter Council Bluffs
is regarded as significant, and gives rise
to the suspicion that there are others in
terested in the proceedings besides Mr..
Killpack.