The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1903-01-28
FILES ANSWER.
Gas COmpany's Side of City
Controversy.
Claims That It's Franchise Is
Valid.

ing business in Topeka.
The answer is not limited to cate
gorical denial of the eity's petition, but
goes into the merits Of the case quite
extensively.
Four general answers are made to the
petition; first that the ordinances
granting the company a franchise IS
valid: second, that even if it is technic-
ally invalid, the city is estopped from
Objecting at this time because Tor
90 years no objection has been made;
third that the franchise is a contract
with the city, and it would be contrary
to the constitution to compel the ln1-
pairment of that contract; fourth, that
the ousting of the company would be
depriving the company of its property
without due process of law, and there
fore contrary to the 14th amendment.
The answer is signed by Rossington,
Smith & listed and Eugene Hagan,
attorneys for the gas company. The
cOmpany's attorneys express the ut
most confidence that the quo Warranso
proceedings will fail They say the
city has no show at all.
THE CITY'S POSITION.
The suit which was filed by the city
/ is the outcome, more or less directly, of
the dollar gas litigation. If the quo
warranto proceedings prove successful,
the dollar gas case vii lend, because the
company will be without a franchise.
and will be at the mercy of the city. The
city claims that on June Z, 1863, a fran
chise for a term of u years was granted
to the gas company. This franchise
ordinance was both passed and approved
on that date, June Z, and would there
fore have expired on June z, 1890.
On July 49, 1889, when r. L Cofran
was mayor, the city council granted a
new franchise to the gas company The
/ franchise ordinance was made to cover
4 a period of 20 years from and after
4 the taking effect of this ordinance. The
4 last section of the ordinance says:
This ordinance shall take effect and
be In force from and after the It'll day
! Of June, $780,
BY this means the council granted a
renewal of franchise eleven months
+ before it had expired. 1t might be taken
+ to indicate that the councilmen on July
/ 16 1889, were friendly to the gas COM
pany, and were afraid to wait until
after the elections the next April for
I fear that new COuncllmen would be
elected who might refuse to grant re-
newal of the franchise. At least that
is what the city will contend.
GAS COAIPANY'S ANSWER
Taking up the question of the validity
of the franchise ordinance, the answer
! simply asserts that the action of the
council was legal and regular. The an
swer says in part:
said defendant. further answering,
denies that ordinance No. 9S7. a copy of
which is attached to plaintiffs petition
as exhibit c is a pretended ordinance.
but on the contrary thereof alleges that
on the 18th day of July. 1889, the said
/ city OF Topeka was duly organized as Il
city of the first-class under the laws Of
the state of Kansas and was duly auth
0rized and empowered by the laws or
/ the state of Kansas and in pursuance
of such authority did duly pass and en-
act said ordinance NO. 2Sl. That SAID
/ ordinance was duly approved and pub
Ished and became effective and in force
| as provided by the terms Of said ordi-
nance.
LAS a second and further defense to
said petition said defendant says tllat
from the date of the passage of said
ordinance 9ST SO as aforesaid passed by
the city of Topeka and until the insti-
tuition OF this suit in the name of the
state but at the instigati0n of the city
of Topeka and its attorney both the
city Of Topeka and this defendant have
treated said ordinance 9S7 as an exist
ing and binding contract between the
city Of Topeka and this defendant;
that this defendant relying upon the
faith of sails agreement and CONTRACT
contained in said ordinance 9S7 has laid
out large sums Of money in the cOn9
struction of its works and the constant
Improvement and extension thereof
which sums of money exceed the sum
of 100000; that during this entire
period said city of TO2eka has acduIe
esced in the right of said defendant to
occupy the streets, lanes, avenues, alleys
and public grounds of said city, and has
repeatedly recognized and affirmed th5
! terms OF the contract existing between
said defendant and said city by reason
Of the provisions of said ordinance 9S7i
that it has repeatedly accepted the pro-
visions of the terms Of said ordinance
on it's part and required said defendant
to conaIy with the terms Of said ordi-
nance on its part; that said city during
the entire period since the passage o.
said ordinance has constantly recog
nized the right of said defendant K
carry on its business in the city of To
pel1a. under the provisions of said ordi
nance.
by reason whereof, this defendan
alleges that if there exists any defec
in the passage of said ordinance, ths
! said plaintiff representing the said city
? of Topeka is now estopped by its con
ordinance should now be declared to b
binding and existing contrac
between said city and this defendant.
And said defendant further answer
T. ing, and as a further defense says tina
the state of Kansas is not the rea
!, party in interest; that the object o
said suit as clearly disclosed from tn
petition of said plaintiff is not to ques
1 ton the right of the said defendant 4
! / transact its business under and il
pursuance of its authority derived from
the charter granted by the state o
Kansas. but the sole object of sal
suit is for the purpose of annulling an
setting aside a contract entered int
e between the city CT Topeka and tlli
! defendant; that in entering into sal
. contract the said city of Topeka va
D not exercising its governmental func
s tiops, but simply making a contrac
= with reference to its property rights il
= which the state of Kansas has no in
e terest.
+ ..And said defendant further answer
, ing the petition of said plaintiff say
$ that if said plaintiff be permitted t
o maintain this action and to obtain til
2 decree prayed for by said plaintiff i
: its said petition such decree or judg
. n1ent would impair the obligation of tn
? contract now existing between the cit
: of Topeka and this defendant and woul
S be violative Of the provision of the fed
q eral constitution prohibiting such i'm
paFtnsent. being section 10 of article
of the constitution OF the United States.
The answer closes by raising the four
- teenth amendment as a second c0nstitu
> tional objection to the quo warrant
L proceedings.