Omaha daily bee., 1903-04-01
ENJOINS The CITY COUNCIL
Judge Dickinson Holds that Oity Cannot
Contract with an Official
GIVES POWER CANAL tFFtcrUAL SETBACK
Court Intimates that Ordinance
Passed First and Second Reading
Last Tuesday wouId Fail
for Same Reason.

In district court yesterday Judge Dick
lnson held that II the city council
should grant Andrew Rosewatel city en-
gineer, his desired electric power franchise
1t would be a violation Of that provision OF
law which forbids a city to enter into con-
tract with a city official and he (the court)
therefore temporarily enjoined the council
from passing ordinance 3247, as prayed for
by the Thomson-Housto company through
stephen Rice, a freebooter In the employ
Of that corporation.
After the decision was announced City
Attorney Cornell asked II, in the event of
Engineer Rosewater Immediately resigning
his Office, the injunction order would pre-
vent the city council passing the second
franchise ordinance introduced for Rose
water last Tuesday night and now passed
only its second reading.
The court replied that the order would
be written to apply only to the original or
dinance, which was the only one before the
court, but intimated that in the view OF
the court R%osewater, II he should resign,
should not properly seek a franchise by an
ordinance which had its inception and was
put through its initial steps while he was
still in office. 1T would hardly be right"
the court remarked, FOR him to resign one
minute and be granted the next minute a
franchise, the ordinance providing for
which had been advanced through its vari-
Gus stages while he was still in Office"
Makes Second Ordinance Uncertain.
In the opinion Of City Attorney Cornell
this ruling and subsequent remark not only
prevent the passage OF the original ordi-
nance, but probably make the destiny OF
the second two uncertain to warrant further
efforts in its behalf. Though he has not
yet had time to go over the matter fully,
the city attorney now fears that there Is
NO way out Of the difficulty except a special
election entailing an expense Of from IS, 900
to 10000, rs It is sot thought that a new
ordinance could be introduced, advertised
the necessary two weeks, passed and be
properly submitted to the people by the
date of the regular election, even II Engl-
neer Rosewater should resign today.
In making his ruling yesterday Judge
Dickinson stated that he was passing upon
the question entirely upon the record pro-
huced in court without regard to outside
matters;" that UNDER the decision in the
Moores' case, in his opinion the plaintiff
had a right to institute proceedings to pre-
vent the councils doing something 1t pro-
posed to do, but that whether or not the
Injunction was granted lay in the dis
erection OF the court; that as for the prop
osition that the council should be enjoined
from passing the ordinance because amend
ments introduced were not advertised, he
would hold that the original ordinance
without such amendments could be passed;
but that on the showing that Andrew Rose
water is as much an officer Of the city as
O councilman is. and the granting of a
franchise to him would involve as close a
contract as could exist between two In
dividuals, the court would have to grant
a temporary injunction forbidding the
council to pass ordinance 3247.
The city attorney asked hat the in
demnity bond required of the plaintiffs in
the suit be made $4,000 or more. but the
court fixed it at $1,000.
City Engineer Talks.
City Engineer Andrew Rosewater was
not disposed yesterday to comment at
any length upon the Dickinson injunction.
It was apparent that he Is greatly dis
appointed, but not hopeless. According to
City Attorney Cornell the question is
fatty up to the city engineer as to whether
he will resign and take his chances in Sc
curing the passage of a new ordinance.
But. as the city attorney pointed out, there
is no assurance that the council will pass
the ordinance, even though the engineer
does relinquish his position.
"I have not decided what my next step
Will bGt eoAu M
tion is vital and 1 want to act with all
elaboration and care. Concerning the in
junction, l want to state merely that 1t is
an Injunction agaSst the people-the source
of all the power that courts, legislatures
or councils possess. The people are pre-
vented from exercising their judgment
upon a vital question.
to my position having a possible in
huence over the city council, all want TO
say is that all the influence l have with the
council has not succeeded after six months
in getting this body to pass the ordinance.
As TO Damage to City.
"The theory OF the plaintiffs action is
that II I obtain the franchise II will damage
the public, and on this pretext l am put of.
would ask how l am TO damage the public
by charging 81 per cent less for lighting
and 100 per cent less for power than is now
exacted; paying 3 per cent royalty on all
the business done and bringing $1,000, 600
capital into this territory to develop this
pity?
1T would be willing to resign as city en-
Vineer to go before the people and ask them
for this franchise. But according to the
decision any ordinance introduced while l
am city engineer is no good. A new ordt-
nance will require at least two weeks time
before 1t can be finally passed, and l am
afraid the time is too short to get 1t before
the people at the spring election, provided
= new ordinance received the most favorable
action at the hands Of the council. 1t would
have to be introduced at tonight's meeting,
and Councilman Lobeck, one Of my support
ers, can hardly be present, as his mother
has Just died. A special election will cost
thousands OF dollars, which l would in all
probability be called upon to pay"
MANY METER nEST'c pI ACE