Omaha daily bee., 1903-03-08
HEAR The TELEPHONE CASE
Arguments to Be Made at a Date to Be Set
by the Court.
COUNTY ATTACKS NEBRASKA FRANCHISE
Company Insists it Not only Has n
valid Franchise, but n Right to
Operate Under the Gem
eral Law.

with the exception of arguments to be
made by counsel at a date not yet fixed,
the hearing in the quo warranto proceed
ings brought by County Attorney Killpack
against the Nebraska Telephone company,
attacking the company's franchise, was
completed yesterday in district court before
Judge Thornell. y Jury having been waived
by mutual agreement.
The franchise of the company is attacked
on the grounds that the ordinance grant
ing It was invalid for two reasons. The
first reason relied on by the county attor-
ney is thai in the passage Of the ordinance
by the city council on October s. 1880, the
law was not complied with in that no rec
ord was made of the aye and nay vote.
The second ground on which the county
attorney attacks the ordinance is that 1t
embraced two subjects, contrary to the
statute. In this regard it is claimed that
in addition to the ordinance granting the
franchise it also contained a section max
Ing 1t a crime for any person to deface or
otherwise injure the property Of the COM
pany and defining punishment for such Of
tense.
Prior to the hearing of the case County
Attorney Kilipack filed an amendment to
his petition asking that the defendant COM
pany also be restrained from using and oc-
cupying the public highways Of the county
in addition to the streets and alleys Of the
city.
The Telephone company, while contend
ing that its franchise is legal and valid and
has been so held by the city for a long
number of years without dispute, contends
that it has a statutory right under the re-
cent decision OF the supreme court in the
case Of Chamberlain against the Iowa Tel
ephone company in Des Moines to erect
and maintain its poles and lines on the
public thoroughfares which the supreme
court held streets and alleys to be. Against
this the county attorney contends that the
statute relied on by the company is "a
constitutional, in that it provides for the
occupancy Of highways without making any
provision for compensation to property
owners for damages which they might sus-
tain and for the use CT public property
without compensation.
The telephone company is represented
by Attorneys W.. W. Morsman Of Omaha
and S. B. Wadsworth of this city. Emmett
FINLEY is assisting the county attorney.
As Emmett FINLEY is interested in and at
torney for a local Independent company,
which was before the city council for a
telephone franchise and is understood ex-
peCtS 10 again dSh lI Cudltoi INK W
I that he was called upon by the county at
torney't to assist in this case is regarded as
significant and taken to indicate that the
independent company is back OF the pres
ent proceedings.
The only witnesses examined were Vance
Lane, general manager Of the company; A.
p. Fair, the company's local manager, and
City Clerk Phillips. The ~latter's testimony
related solely to the records Of the city
council.
Margaret Cramer began suit against the
City OF Council Bluffs yesterday in the
district court for SIS, 900 damages for per-
sonal injuries alleged to have been received
the night Of December 20, 1902, by stepping
into a hole on Fourth street, between Ninth
and Tenth avenues. 1t is charged by the
! plaintiff that the hole or excavation was
not protected by a light or other danger
signal.
The personal injury suit Of James Burke
against the Chicago & Northwestern Rail-
way company was dismissed at plaintiffs
cost, having been settled out of court.