The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-10-13

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piration of the second, third and fourth
1 20 years or extend their franchise to
said company at the end of each of said
terms for the then next 20 years.
I'D Section was in substance that
the city shall rent from the water COM
pany, during the term of 20 years and
during the term of any extension of
the franchise. certain number of hyd-
rants at an annual rental to be paid
semi and additional hydrants
if required by the city at a price named
/ in said ordinance
WHAT THE COMPANY HAS
After the passage, approval and ac-
Iceptance of the ordinance the water sup
| ply company erected the waterworks.
and the same have from time to time
as I understand it, been extended and
enlarged The water plant according to
my understanding consists, at the pres
ent time, chiefly of the following
I The pipe system extending
throughout the streets and public
grounds of the city.
- A pumping station at the foot of
Harrison street erected upon grounds
belonging to the company.
g. The west end pumping station
erected upon grounds belonging to the
company and right-of-Way for piping
owned or controlled by it from said sta
4 ton to the city.
--As will be observed by the provisions
of the ordinance it purported or at
tempted to bind the city:
L To a grant Of right to use the
streets and public places for the term of
the corporate existence of the water
company.
y. To grant the right and privilege to
the water company of supplying the city
and its citizens with water for the period
of twenty years
g. To bind TIE city to pay hydrant
rental for the term of twenty years and
for the term Of any extension of the
franchise
a To bind the city after twenty
years from the completion of the works
to extend the franchise. or
IS To purchase the works.
This ordinance or any of it's Drovi-
sions was never submitted to vote OF
the people.
7 am of the opinion that the attempt
ed grant Of the use of the streets and
public grounds of the city for the pur-
pose of distributing water was void be-
yond the twenty year term, for the rea-
son that the statute then in force linn
tied the right of the city in making suen
years
7 am also of the opinion that the pro-
visions of section attempting to bind
1.-The city to extend the franchise for a
further term after the exDirati of the
| first twenty years was. void inasmuch
as the power to grant was limited to
| twenty years and the statute contained
an express provision that any contract
granting a right to erect waterworhs
and lay drain pipes should not be re-
granted or renewed unless by consent
of a majority of the qualified voters Of
the city, to be ascertained al an election
held for that purpose.
CONTRACT TO BUY IS INVALID.
Il am also OF the opinion that the
| alternative named in said section 5 that
in case the franchise was not extended
| the city was required to purchase the
| waterworks is also invalid. It is so con-
| uected with the illegal provision last
named as to probably invalidate il.
There was no express power at that
70 hos ,-1--
power was to erect and maintain and to
grant the right to another corporation
or person to erect There was no power
to provide means for paying for the piIr-
chase of a plant except by borrowing
money fand issuing bonds and under
| the authority of State VS.. Kansas City,
so Kas. is. lam fncffned TO think thai
1.-THE city did not have ths power in any
unless authorized bys ssIEpte of the cleo
/ tors. .as, -ar
IF I am correct in the foregoing con-
| illusions the only legal right obtained by
the water company under the ordinance
was ID the right to use the streets and
public grounds for the purpose of lay
ing pipes and conducting and distribute
ing water for twenty years; ca the.
right to supply the city and its citizens
with water for twenty years; and, C31
/ the right to require the city to pay
hydrant rental for the period of twenty
years.
If this conclusion is correct the TWEEN
| ty years having terminated no con-
| tractual rights or obligations exist be-
tween the parties and the water
company would no longer have the right
to exercise the franchise of furnishing
the city and its inhabitants with water
| and using the streets and public
grounds CT the city for the purpose of
conveying and distributing such water.
The question arises what are the
rights of the water company respecting
the pipes in the streets and public
grounds of the city 1t would seem on
the authority of State VS.. Lawrence
Bridge Co, p Kan. 43S, that after the ex-
piration of the franchise the water COM
pany would not have any legal right to
take the pipes out or to compel the city
to pay for them
VALUE OF THE PROPERTY.
If the city is not obliged to buy the
waterworlxs property and is under no
legal obligation to pay for the pipes in
the streets and public grounds, the fail
and equitable value of the plant is not
so material; if, however, it should be
held that the city is obliged to purchase
the plant including all the extensions
and engagements thereof and every
thing of every nature and description
belonging and pertaining thereto and
pay therefor the fair and equitable
value thereof the inquiry will be what
is such fair and equita bic value.
4 am informed that about two years
ago the city employed an engineer to
examine the waterwcrks property and
give. an estimate to the city of what
was, in his Judgment. its value; that the
water company. also. about the same
time, employed smother engineer to
make similar examination; that said
engineers, for the purpose of determin.
mining the value of the property, pro-
ceeded upon the value of the first as
certaining the cost of reproducing the
plant new as it then stood second then
added thereto such amount as would be
considered a proper sum for going
IT ri Lodi f1a 1e~
gate of the two last amounts sum
which was thought to be sufficient to
cover deterioration.
The reports of the engineers were
given out in October and November,
1900 and it seems that both agreed upon
. the amount il would cost TO d1InIica fe