The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-10-11

into court and get exactly the same re
lief that the city could give them. 1
| the city had franchise contract will
right to make this application. But
| the city has no contract rights Other
| than any citizen has
IF the city should pass this resolu-
ton" said Councilman Green, would
it prejudice the case of the city in any
| way?"
las 1 understand it, this rests with
the judgment of the council. NOTHING
has been done as I understand it, which
binds the company to sell the plant,
or the city to buy it. 1 don't see how
it would guarantee any rights to the
water company. If Nxe water company
is correct in it's contention, it has a
franchise now, under the self-renewinS
clause of the old franchise. 1 do not
concur with that view of the case, how
ever"
I'm view of this opinion" said MI.
Green, land for the further reason
that President Street will be here Tues
day, I move that further consideration
of the water matter be postponed"
This motion prevailed.
City Attorney Spencer submitted the
following written opinion on the pres
ent phases of the waterworkS case:
Topeka, Oct. 10, 1904.
ITO the Mayor and Council:
Il herewith submit in writing my opin-
ion in regard to the waterworks matter
now before the council:
''First-II is my opinion now, as here
tofore expressed, that it is best and safest
for the council to determine. if possible,
whether the city will buy the water plant
in it's present condition and pay $500. 90
therefor, before taking any action which
may further complicate the situation and
prejudice the rights of the city. This pO-
sition was more fully set forth in my
communication to the council August p
1904.
Secondly the petition of taxpayers
presented to the council and the recon-
dot fnf fnn afarx uni
it is proposed that the city make applI-
cation to the court for an order requiring
the receiver to furnish proper water pres
sure for fire protection and domestic use
in return for the money being paid by
the city and it's inhabitants for these
IF, pursuant to said application, i'm
provements should be made beyond such
plant in good condition as to repair, and
the city should buy the plant, the proba-
bilities strong that the city will have
to pay for such improvements.
'Third-The making of the application
above set forth will not in my Judgment
operate to extend or renew the franchise
of the water company; provided, that any
improvements made pursuant to said APP
sonably necessary to put said plant in
good condition to repairs but if, pur-
plant should be vitality enlarged or par
TALLY rebuilt and extended, involving
necessarily the expenditure of a large
sum OF money, then in my Judgment 1lere
would be great danger that such action
would operate as a franchise extension
under the contract of $751; or at least give
the water company the right to continue
doing business in said city for an indeffn-
lite number of years, along the line of the
decision of the supreme court of this
state in the case of Waterworks Co. VS..
City of Columbus, As Kan. 49,
''Fourth-It would be a very difficult
matter to draw the line between the two
kinds of improvements above referred to.
In my judgment the present water plant
will have to be greatly enlarged and TO a
great extent rebuilt at a large expense
before it will give the satisfaction de-
manded by the public. Hence. according
to my view, we are treading on danger
Gus ground with reference to extension of
franchise rights in the matter of the i'm
provement of the plant.
However, I believe the emergency is
such as to justify the making of the an
plication to the court asked for and that
such application should be made, but that
the same and the proceedings hereunder
should be strictly confined within the lin
submitted CHARLES F. SPENCER
City ATTORNEY"