The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-11-26
DOLLAR GAS UP AGAIN.
City Tries to Knock Prop From
Under Company.

A very important and possibly vital
point in Tooeka's dollar gas case is
being argued this afternoon before
Judge W. c. Hook in the United States
circuit court.
Topekas attorneys are trying to
knock out from under the gas company
one OF the two props which support the
company's injunction suit againstthe Ell
fOrCement of the dollar gas ordinance.
If the city succeeds, the company will
have to rely upon the evidence which
| is already introduced to win its case If
! it fails. It means that the company has
two good strings to it's bow, one of
which is likely to prove fatal to the en-
forcement of the proposed gas ordi
nance. a
The claims of the gas company are az
1 follows:
| tutional because it seems to impose a
rate schedule which is confscatory and
unreasonable.
Second-The ordinance is void for the
further reason that the rates in Topeka
are no higher than in other cities of
similar size, similarly situated which is
the provision of the franchise ordinance
granted to the gas company in 1890.
/ The company claims that this provision
of the franchise is a contract binding
upon the city.
Testimony has already been taken by
the gas company in support of the first
contention. Now the question arises
whether or not the company shall go
ahead and secure testimony as to the gas
rates in other cities of the country of
similar size and similarly situated to
Topeka.
The attorneys for the city claim that no
testimony should be taken this point
for the reason that the city had no right
| to insert such provision in the fran
chise This is the point which was argued
/ before Judge Hook this afternoon.
- A.
franchise is valid, the costs in the case
will be increased by many hundred dol
lars 1t will be necessary for the special
master, the attorneys for the city and
for the gas company to visit cities of
| similar size to Topeka in many parts of
the country. The number of cities which
viii be visited may run up to thirty or
forty. 1t is impossible to tell how far it
will go. and the cost of each visit is
| liable to be from $50 to $500.
On account of the irnme nse additional
expense involved it was agreed that the
| validity of the rate proviso of she fran
ming to take testimony on the point at is
sue only ona witness so far has testified
johnson of the Lawrence plant, whose
the attorneys for the city.
Judge Hook set the hearing down for
1:30 o'clock this afternoon. The city is rep
resented by Judge J. d. Mcfarland and
Blood Smith and Eugene Hagan appeared
for the gas company.
Iater-At 2:45 this afternoon, at the con =
cluslon of the arguments behalf of the
city by Judge Mcfarland and Mr.. Smith
for the gas company. Judge Hook sus-
/ tanned The demurrer to the point in con-
/ troversy, thus giving the city It's first i'm
portant victory IN the suit.
Tho decision was given by Judge Hook
in respect TO the judgment of the supreme
court of the United States in certain I'LL
nois cases known as the FTeeport cases.
1T is doubtful" said Judge Hook
''Whet her the city had the right to enter
into any such contract as stated in the
franchise. 1t is still more doubtful wheth-
or section of the franchise, which pro-
Vdes for the maximum rates, approaches
the dignity of a contract
In my opinion this case goes way with
in the Freeport cases. 1t is possible tina
if any time in the future a case as close t
the line these Freeport cases sho,ld
come up, the supreme court would find d
way to distinguish between them. and ulti-
mately the Freeport cases may be .expeli
ed. But it would be an act of temerity
on my part to disregard these opinions OF
the supreme court. 1t would be improp FL
court a chance to reverse itself / viii
simply bow to the decision of the supreme
court, and therefore / feel that the de
murrer should be sustained.
The attorneys for the gas company ex
cepted to the decision: If the gas com
it will very likely appeal to the highe
courts on this point.
The decision of the supreme court o
the United States was given by q majorIt.
of one. Since then Justice White has die,
and Justice Oliver Wendell Holmes ha
succeeded him. Justice White was one G
> the majority side in that decision.