The Topeka state journal., 1903-06-29
ARE GOOD.
Judge Hazen Decides Water
works Case Today.
The Election Was Properly
Called and Legal.
COVERS EVERY POINT.
Discusses the Question from
Every Phase.
Application for an Injunction
Is Denied.
Appeal Will Be Taken to Su-
preme Court.

Judge Hazen passed upon the validity
of the bonds voted at the last general
election for the purchase of the water
works system by the city and held the
bonds to be valid. The case will be ap-
pealed to the supreme court and an ef-
fort viii be made to have the hearing
during the July sitting.
The case in the district court was
brought in the form of an injunction to
test the validity of the bonds. Judge ].
T. Clark was the plaintiff represented
by Carver and Larimer. City Attorney
Spencer and ]. D. Mcfarland appeared
for the city of Topeka. The case was
tried on an agreed statement of facts.
In delivering his opinion refusing the
temporary Injunction asked for to pre-
vent the Issuance of the bonds Judge
Eazen said: The first point raised on
behalf of the plaintiff is that the cleo
ton to vote on the bonds was held with
out authority and was not properly
called. 1t was contended that the mayor
and city council should have passed
upon the petition asking for the election
and that only the mayor passed on Il.
The law requires that when IWo-thirds
OF the voters sign such a petition ard
present it to the mayor that he shall call
an election. My judgment is that the
authority was Vest,- II the mayor. al
though it would have been Nell to have
4 ~ be tn the mayCs' 2r,d council pass
upon the petition. elsewhere in the new
city charter act it is required that petit
uons shall be passed on by both the
mayor and council This is the closest
case.
The next question urged is that there
IS mortgage on the property which
the city means to purchase and that the
city has no right to assume property
Wnlcn IS encumb bered. 1t might be that
the city could rot assume a MORTGAGE
but the fact that the city buys the
property subject to a mortgage does not
1nvalidate the purchase.
The next claim on the part Of the
plaintiff is that the legislature of 1901
provided that this new law be publish
ed in the official city paper. The legis-
larure certainly intended that to read
official state paper and the law was
lgll. uphshed IN the official state paper
This only shows carelessness on the
part of the Legislature. The court hs <
a right to read the law as the legis-
lature intended it to be.
The next claim is that there is or
was no Indebtedness and that bonds
the bonds are delivered the city will
nave agreed to buy the waterworks and
there will be an existing Indebtedness.
1t is also contended that the bonds
dld not receive enough votes. line bond
election was held at the same time as
the general election. The courts have
held that such elections are separate
A majority of those voting on the bond
proposition We're for it ard it carried.
The ballots cast which were blank can
not be counted as votes.
The next contention is that the petit
tion was presented under an old law
and that the election was called under
new law: that the old law was repealed
and therefore there was no authority
for the holding of the election Section
200 of the new city charter act provides
that the new law shall not effect build
ings. proceedings, etc, started and not
finished when the law was passed. That
these proceedings were started under an
old law does not interfere with the pro-
ceedings.
Tt is my judgment that the applica-
ton for an injunction should be de-
nied.''