The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-12-27
PLEASE Get OUT.
That Is What City Says to Gas
Company.
Claims Has No Right to Fran
chise in Topeka.
SUIT is COMMENCED.
Proceedings to Dust Company in
Supreme Court.
Say Franchise Is Invalid Be-
cause Not Regularly Passed.

Quo warranto proceedings for the pur-
pose of ousting the Excelsior Coke and
Gas company from exercising the rights
of its franchise in the city of Topeka
were filed today by City Attorney Chas.
F. Spencer in the supreme court.
1t is contended that the gas franchise
/ is invalid becuse it was passed eleven
months before the old franchise expired,
and was passed by the votes of council
men who were not members of the coun-
ell when the expiration of the old fran
chise really did occur.
City Attorney Spencer filed the pro-
ceedings on behalf OF the city, but Sc
cured from Attorney General GODDARD the
permission to use the name of the state
as plaintiff. AS is customary in quo
warranto proceedings, the case will
likely be set for a speedy hearing.
If the city wins it's suit, and proves
that the gas company has no valid fran
chise. it win in effect terminate the
pending dollar gas" litigation. With
out franchise the gas company is at
the mercy of the city. 1t would no doubt
enter into negotiations for a new fran
chise, and would have to submit TO
whatever provisions regarding rates the
city might choose to demand.
Until the quo warranto proceedings
are settled, however, the plan is to con-
tinue the taking of testimony in the dol
lar gas case. The plan is to resume
work some time next week AS City AT
torney Spencer says:
The new move has no effect whatever
on the progress of the hearing of the
/ gas rate case. They are entirely inde-
pendent actions. The associate counsel
/ of the city in this case, Judge McFar-
land, does not appear in the quo war
ranto suit
It is claimed by the city that there are
several decisions of the supreme courts
IN other states which are exactly to the
point in this case. and sustain in every
particular the contention of the city.
Attorney General GODDARD believes
there is sufficient ground for the suit to
4 warrant the state taking a hand in it,
and he therefore authorized the use of
the name OF the state as plaintiff in the
suit
City Attorney Spencer cited to me
sufficient authority said Attorney Gen
eral GODDARD, Ito make it appear to- me
that the suit ought to be brought in the
interest of the public, and l therefors
authorized him to use the name of the
state in bringing it.
The first franchise under which the
gas company came into the city was
granted in 1869 and ran for twenty-one
years. In 1883 the city council passed an
other ordinance granting a new fran
ch1se, but 1t was made effective eleven
months after it was passed, which was
after another city. election was held and
half of the council changed. This, it is
contended, S1ade the ordinance invalid
and I think it of sufficient Importance
tf bring it before the supreme court
'The quo warrantO petition, together
with attached exhibits of ordinances
and evidences of incorporat ton, is quit,
z a bulky document. In brief it sets forth
that on June Z, 1859, a franchise. for E
l term of 21 years was granted to the gas
/
5 both passed and approved on that date
D June 7, and would therefore have ex.
pired on June 7, 1890.
? On July 16 1889. when r. L. Cofrar
I was mayor, the city council granted
. new franchise TO the gas company. Th,
) franchise ordinance was made to cove
: a period of 20 years from and after tn
/ taking effect of this ordinance" TIL.
last section of the ordinance says:
This ordinance shall take effect an(
f be In force from and after the 7th da,
of June. 1s9O.''
! By this means the council granted
: renewal of franchise eleven month
4 before it had expired. It might be ia
q ken to indicate that the councilmen o.
! July 16, 1889, were friendly to the ga
company, and were afraid to wait unit
4 after the elections the next April 70
! fear that new councilmen would b
elected who might refuse to grant
o renewal of the franchise At least, tha
is what the city will contend
f llldl dS It may. II Is a IaCT tina
of the five councilmen whose terms G
: office expired in April. 1900 only on
was reelected. Four new councilme
{ therefore occupied chairs when the oil
franchise of the gas company really ex
= pired on June Z, 1900. What DOSitiO
:. those four new councilmen held on tn
question of a renewal of the gas fran
: chise OF course can not be stated. 70
o there is nothing to show that anythin
@ in regard to the matter ever came u
in tho CO1nniI after fha -franofiSa wa
renewed eleven months before.
1t is contended by the city with wha
appears to be great equity. that if
city council has the right to renew
franchise eleven months before it ex
pires and date the taking effect of tn
renewal forward. IT would be -ossibl
for a council to renew franchise a
any time. For example. the Vinewoo
q Park railway has Just secured a -9-vea
franchise. If the passage of the presen
4 gas company franchise was legal
would appear that the present cit
council, or any subsequent council, coul
t renewals of that franchise for 20-yea
periods as desired. making practicall
g a perpetual franchise.
\ In the election of April, 1890, Council
: man Gum was reelected from the F'irs
4 ward. Ed Hawes succeeded NJ. Heery Ii
Z the Second, J. Ettlinger succeeded B. M
Curtis IN the Third, Col. Burgess sue
ceeded X=notson in the Fourth. E.
I31ll succeeded Ritchie in the Fifth
f There was no Sixth ward.
! The prayer of the city N the quo war
ranto papers is as follows:
%. said pretended ordinance No
9S7 is the only authority under whicl
, the defendant. the Excelsior Coke an
: Gas company of Topeka, is now claimin:
to exercise franchise rights and priv
ileges in the cit-v of Tooella bu
said plaintiff alleges that said defendan
ACQUIRED no right or authority unde
a said pretended ordinance No. 9S7 to ex