The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1902-10-13
|. d. Netherlands Opinion on
WaterWorks Controversy.
Says Water Company Has Very
Little to Sell.
CONFISCATETHE MAINS
Claims That Company Has No
Rights in the City.
Reviews the Work of the Hy-
drauIic Engineers.

On Monday. September 1, Judge ]. D.
Mcfarland, the city associate counsel
in the waterworks situation. delivered
10 the city council through the city at
torney long and very radical opinion
on the legal phases of the controversy.
Judge Mcfarland took up in detail the
progress OF the negotiations for the pur-
cnase OF the plant, and argued that the
water company had really nothing to
sell the c.sT except its real estate and
pumping station. He held that the
franchise is terminated: that the water
pipes and Tcains in the streets of the
city are tue property of the city, and
that the company does not even have
the right 10 take up and carry away
these pipes.
At the time the opinion was delivered
the State journal printed a summary of
the opinion, with extracts from import
ant parts 7 he detailed figures from the
opinion are also of interest, as showing
the position of the radical opponents of
the proposition to purchase the water
plant for the sum of $500 CGO The opin-
ion in full is as follows:
In September, 1881, ordinance No 400
was passed and approved by the mayor
and council and accepted by the Topeka
Water Supply company, and by the
terms thereof the ordinance when ac-
cepted had the effect of a contract be-
tween the city and the water company.
The city of Topeka was then city of
the l1ISI CLASS ana the topeka water
Supply company was a corporation or
ganized in 1881, under the laws of the
state of Kansas, to exist under the terms
of It's charter for - years. The
statutes of the state relative to cities of
the first class then in force provided,
among other things, as follows:
"(a) The city council were empower
ed to grant the right to any person or
corporation to erect waterwOrks and
lay drain pipes for the use of the city
and its inha bitantS, upon such terms as
might be prescribed by ordinance, pro-
vlded such contract should not extend
for longer period than twenty years
and should not be regranted or renewed
unless by consent of a majority of the
qualified voters of said city to be as
certained at an election to be held for
that purpose.
"(c) The mayor and council were
given power to grant to any person or
corporation the use of streets and pub
lie grounds, for the purpose of laying
water piWeS to be used in supplying the
city and its inha bitantS with water I'M
der such restrictions as should protect
public and private property and insure
proper remuneration for such grants.
but such power was restricted so that
no franchises. rights Of way or privileges
of any character whatever should be
granted by the mayor and council for
longer period than twenty years.
f(d) The mayor and council We're
given power to make all needful police
ton, good order and peace of the city.
't(e) Power was given to levy tax
not exceeding six mills on the dollar in
any one year for general revenue pur-
poses and not exceeding three mills on
the dollar in any one year for general
improvement purposes; power was also
given to levy a tax in addition to other
taxes to pay for water furnished the
city in case the right to construct and
maintain waterworks be granted to any
person or corporation; provision was
also made for borrowing money and is
suing bonds for the construction of
waterworks and for paying for improve
ments of a general nature, but no bonds
could be issued until the city council
were instructed SO to do by two-thirds
of all the votes cast a an election held
in the city fer that purpose
THE CITY'S CONTRACT.
by the terms of ordinance No. 400 the
city purported to grant to and agree
with the Tooeka Water Supply COM
pany as follows:
"(a) By section 1 the city purported to
grant to the water company the right
and privilege for the period of 90 years
from and after the date of the passage
of the ordinance. of supplying the city
and its citizens with water, subject to
the ordinance, to be used for domestic,
manufacturing and fire purposes.
.'Ob) By section the city purported to
authorize the company to construct and
1
lextend pipes through all the streets
and public grounds; to take up pave
ments and sidewalks IN the streets and
public grounds and make such excava-
tons therein as should be necessary to
/ lay, repair and maintain pipes below the
ground for conveying and distributing
/ water. There was also inserted in said
section 2 a provision that the right in
said section granted was to continue TO
/ be enjoyed by the water company for
the term of its corporate existence, but
that the city was not to be under any
| obligation to continue taking water af-
ter the contract made under said ordi-
nance should terminate
'-(c) By the terms of section 5 the city
/ purported to agree and obiigate itself,
after 20 years from the completion of
| said works to extend the franchise
granted in said ordinance to said water
company for the further term of 20
years or to acquire and become sole
owner of said works including all ex-
tensions and engagements thereof and
/ everything of every nature and descrip-
ton and pertaining thereto, on paying
therefor the fair and equitable value
thereof to be ascertained. if the parties
could not agree. by the district court of
Shawnee county. Said section 5 also
4 contained q provision in substance that
in case the city should not purchase
/
ID c1.l-me