The Wichita daily eagle. [volume] (Wichita, Kan.) 1890-1906, 1903-07-26
CAN EXTEND LINES
Judge Rogers Grants lnjunc-
ton Against City.
FRANCHISES ARE VALID
Decision Will Effect Cases of
Other Cities.

The Missouri and Kansas Telephone
company was given a new lease of life
in this city by the opinion of Judge
Rogers. of the Western district Of Ar
kansas. in the case of the Old Colony
Trust company and Chas. J. Hubbard VS..
the city Of wichita, which was received
here yesterday In this case the trust
COMPANY asked the United States circuit
court u grant a permanent injunction
against the city and its employees from
tearing down or removing the property
of the company. molesting the telephone
companys employees and preventing the
city from Interfering in any way with the
extension ana Improvement Of its lines
The company won every point in their
contention before Judge Rogers.
The opinion and decree in the case
reached Wichita yesterday morning. Judge
Rogers sent both to Judge Hook, who
returned them to J. F. Sherman, with
instructions TO file them. The decree was
not entered and hence will not be made
public until Judge Hook delivers it from
the bench. The opinion was given to the
attorneys yesterday. Judge Hook is in
Washington at present, but vii return
TO Leavenworth on August 9Th to hear
motions and issue orders, and at that time
vii come to Wichita and read the decree
Judge Rogers declares that the ordi-
nances granted the United Telephone
company November Il, 1856, and the one
granted the Missouri and Kansas Tele-
phone company March %, 1896 are still
valid. and under these the company can
operate until they expire or are retired by
eetion Of the city council. The decree of
injunction against the city and its en-
ployes is based en- this part of the argu-
ments.
The Merchants Telephone and Tele-
graph company was organized under the
laws Of Kansas and company of the
same name and purpose under the laws
OF Missouri in 1881. Late in the same
year the two, companies were consoli-
dated and incorporated under the laws of
Kansas and Missouri. Two years later
the United Telephone company was in
corporated under the laws of both states,
and in 1856 the city of Wichita granted
this company a franchise to establish
telephone exchange in this city. This
ordinance did not make n limit to the life
of the franchise but Judge Rogers
states in his opinion that this franchise
is still operative and will continue to be
for three years. 1t has never been re-
pealed. and the life Of franchise under
the laws Of Kansas is twenty years.
The year following the granting of this
franchise the Missouri and Kansas Tele-
phone company was organized and incor-
porated in both states. Shortly after
ward the Kansas corporation leased to
the Missouri corporation all Of its prop
erty, franchises and money in this state
for a term Of ninety mine years.
This ordinance was never repealed, and
in the oral arguments before Judge
Rogers the attorneys for the telephone
company held that they had full right
TO operate under its provisions.
On March %. 1895, a franchise was
granted to the Missouri and Kansas Tele-
phone company. In this franchise it was
expressly stated that the franchise could
be revoked by resolution of the city coun-
eli on six months notice. Nearly two
years ago Councilman Burton moved
that the city clerk notify the Missouri
and Kansas Telephone company that the
ordinance Of March % 1896 would be re-
voked at the expiration Of six months
The resolution was not prepared in the
council meeting and adopted, The city
clerk made the formal notice and sent a
copy Of the records of the proceedings to
the telephone company. This the council
deemed al that was necessary to termf-
nate the ordinance.
Judge Rogers in his decision, states
that the intention of the council To termi-
nate the ordinance was perfectly clear
10 him. but il was not a question Of
what the council intended 10 do. but what
they did do, that he must consider. No
formal resolution was adopted and
served, hence the council did not formal
iy terminate the franchise. and ii re-
mains operative according to the opinion
Judge Rogers states that the council
has no right 20 nullify the ordinance OF
1SS6. and had not formally terminated
the ordinance Of 1895, and the city of
Wichita could not interfere with the COM
pany doing work under these ordinances
The city has police regulation over the
company regarding the setting Of poles
and stringing of wires but it has no
right 10 remove poles or wires or disturb
the property OF the company.
The question Of whether the telephone
company had the right 10 construct and
maintain its lines in this city without
franchise was brought up in the argu-
ments but Judge Rogers did not believe
this to be a question at issue and based
his opinion on the fact that the com
pany was working under the ordinances.
The injunction has not become operative
as y ct and Will not be until Judge Hook
hands down the decree on August 9Th.
The city wiz appeal the case 10 the
United states court OF appeals as il was
stipulated when the litigation began that
the case would be tested in the highest
courts.
This case was filed before Judge
Thayer, of the United States circuit court.
sitting in s.. Louis year ago. and a
temporary injunction granted judge
Hook, of The Second division Of Kansas.
asked To be relieved from hearing the
case 2nd judge John II. Rogers. OF the
Western division OF Arkansas. was as
signed 10 the ease. The oral arguments
were made early in March Of this year.
and tie case VAS further submitted on
briefs
The evidence was very voluminous. as
were the briefs. and the opinion covers
thirty iype-writtea pages.
The decision is one that Affects in a
number of ways the status OF cases Of
several Kansas cities which have been
fighting the Missouri and Kansas Tele-
phone cpmpany. Winfield and Wellington
have brought actions To drive the com
pany out Of business, but they have held