The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-04-05
AGREE OR FIGHT.
Last Chance to Compromise the
WaterwOrks Case.
Company Offers to Reduce
Rates and Extend Mains.
Or WILL ARBITRATE.
City Attorney Spencer Says
Company Has No Franchise.
Report on Present Situation Of
the Negotiations.

City Attorney Spencer fled with the
city council last night a written report
of his work on the waterworHs case. The
report was not read to the council, but
was simply placed on file. 1t contains
considerable information of interest to
the public The city council has as yet
not fully agreed upon fair and equit-
able value for the plant, but the amount
finally settled upon will be between
100000 and 100000 The city attorneys
report is as follows:
To the Mayor and Council: I here
with submit in writing a report con
corning status Of proceedings against
the Topeka Water company.
On July &c. 1901. the council directed
me to institute proceedings against the
water company, for the purpose of ac-
curing the WaterWOrks plant by paying
the fair and equitable value thereof I'M
der the franchise contract OF 1881
These proceedings could not be COM
meneed until after the expiration of the
twenty-year franchise, September 3,
1901, and Immediately upon the expira-
ton of this time, notices with copies
of the petition were served, and appi-
cation made to the district court to de-
termine the fair and equitable value or
the water plant, strictly in accordance
with the terms of the contract. The
contract contemplated an informal de-
termination. by arbitration, of the value
of the plant upon application to the
court, as a preliminary step necessary
to be taken before the institution OF
proceedings to compel q. sale of the
plant. This application to the court
was heard November 4, 1901 and was
resisted by the attorneys of the water
company.
On December g. 1901, Judge Hazen an
nounced that he declined to act as ar
bitrator to fix the value of the water
plant.
we could then have filed a suit alleg-
ing the failure of the arbitration pro
vided for in the contract, and asked the
court to determine the value of the
water plant and enforce the contract.
However, during and after the pend
ency Of this matter before Judge Ha-
zen, Mr.. Mcfarland and I, after having
given much consideration to the con-
tract OF 1881 and its legal status, came
to the conclusion that in all probability
the said contract would. if questioned,
be held invalid by the courts. We came
to the conclusion that the provisions OF
the contract binding the city to pur-
chase at the fair and equitable value
or renew the franchise for another
/ twenty years was void under the stat
utes of 1881, and that the council Of
1881 could not bind the city to renew
! the franchise; Furthermore, that under
I the laws of 1881 the city had no power
/ to contract for the purchase Of a water
plant.
In case we had commenced this suit
to carry out the provisions of the ord1-
/ nance in regard to the purchase of the
1 water plant the result might have been
| as follows. The water company would
| have removed the suit to the federal
! court and set up all their defenses, and
! if after a lengthy litigation lasting per
! haps several years the water company
had not been satisfied with the value
! of the plant determined on, it could
] have relied on the invalidity of the
/ contract. and if the court held the con
tract invalid. the city would have beer
left after these several years litigation
| Just where it started.
The conclusion we arrived at was thai
/ it was safest and best for the city not to
| in any way recognize the contract Of1SSl
| in reference to purchasing the plant OF
/ renewing the franchise, as valid anc
| binding, but on the other hand that the
| position of the city should be that the
! franchise contract Of the water com
pany had expired and that said com
| pany now had no franchise rights in the
| city For this reason we had determined
on another proceeding, and were ready
to report our conclusion and advise
wit hthe council for further instructions
soon after Judge Hazen declined to ac
/ as arbitrator. About this time there
! was a change in administration which
necessarily caused some delay. Mayor
Parker was anxious to see another eff
fort made toward the settlement of the
waterworks' problem without law suit
/ and 1 readily cOncurred with him. j
was at this time that Mr.. Street, presi
dent Of the Topeka Water company
came to Topeka and asked for an inter
view with the mayor and myself. Mr.
Street came to Topeka of his own accord
and without any solicitation, as far as
know, on the part of anyone represent
ing the city. The mayor and I hat
an interview with him, and he expressed
a desire on the part of the company t.
effect d speedy sale of the water plan
to the city This conference with MI
Street was followed by several NOR
with him on his second visit here Marcl
20 1902. At these conferences the effort
of Mr. Parker and myself We're directe,
mainly toward getting Mr.. Street to fl
a price for the water plant He claimed
that he had no power to fix this pric
on account of the outstanding interest
of stockholders The most that he dit
say at any time was that he would rec
ommend to the parties interested tina
they take six hundred and fifty thou
sand dollars (S650000) for the plant,
price far beyond what is reasonable am
fair In the letter addressed to me b.
him on leaving the city, he, however
did not mention any price; a copy o
this letter of Mr.. Street is as follows.
Topeka; Kan, March %. 1902.
Charles F. Spencer, Esq, City Attorney
Topeka, Kansas.
Dear Sir: We have carefully consider
ed your request that We shall name