The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1904-10-20
TALK OF FORCE.
Advocates Of City Ownership of
Waterworks I'm Earnest.
Would Bring an Action to Com
pei Council to Buy.
THE MAYOR FAVORS 1T
Thinks Action Of Councilmen
Should Be Tested.
G.. C. Clemens Gives Concise
Opinion Of Legal Status.

There is talk today of mandamus
suit to compel the city. council to obey
its instructions from the voters of To-
peka, and consummate the negotia-
lions for the purchase of the water
works.
G.C.Clemens, who is probably better
posted on the legal phases of the wa
terworks controversy than some of the
lawyers who have been getting fat
fees for their services, says today in
an interview which follows, that the
action of the citizens of Topeka in vot-
ing bonds to buy the plant makes 1T
mandatory upon the city council to
buy the plant; that an action in man
damuS would lie.
Jonathan Thomas. one of the prom
inent citizens who attended the council
meeting Tuesday night, and witnessed
the assassination of the city ownership
proposition, said today:
Il would be glad to do my share to
compel the city council to carry out
the will of the people. The action last
night was an outrage"
c. J. Devlin says: THE city council
should be compelled to obey the voice
of the people and buy that plant. l
am interested in having pure water for
Topeka, and the people of Topeka
should see to it that the council car
ries out their instructions for the pur-
chase of the plant"
j. w. F. Hughes today outlined the
plans which the conspirators seem to
have formed for their future action.
He says that at the council meeting
next Tuesday night, the anti-city own
ership organization will pass a resolu-
ton instructing City Attorney Spencer
to intervene in the suits pending be-
tween the insurance companies and the
water company, and ask Judge Pol
lock to compel the water company to
improve its plant, furnish better wa
ter pressure, etc, etc. This is of course
100 3 Sra.A hot 10 oil
has so long been seeking to avoid;
namely, renewed hostilities with thu
water company. The citizens Of To-
peka can now settle down to the en-
ing litigation, in which they will pay
the expenses of both sides of the case
1t is a lovely muddle.
Mayor Bergundthal said this morn
ing: Il hope that some of the prom
inent citizens of Topeka who are in
terested in city ownership will get to-
gether and bring legal proceedings to
compel the council to carry out the
will of the people 1 believe from what
1 know of the case thatea mandamus
action would stick. I know that if the
water company was real anxious that
the city should buy the plant. 1t would
very quickly bring such an action. The
water company however, is perfectly
satisfied to let things run along just as
they are. They will continue to do
business under their old franchise, and
it likes
Mr. Clemens gives the following
opinion in the case:
Il shall state the case so that any
body can understand it. In 1881, the
city charter provided that the mayor
and council might grant the right to
private corporation to erect waterworks
and lay drain pipes for the use OF the
city and it's inhabitants upon such
terms as may be prescribed by ordl-
nance but that such contract should
be limited to twenty years, and should
not be regranted or renewed unless by
consent of a majority of the qualified
voters of the city voting at an election
to be held fol tina purpose. The char
ter did not specifically provide for the
purchase of the plant by the city at the
expiration of the contract, but left the
terms of the contract to be fixed by
ordinance. Under that charter the con-
tract with the original water company
was made and the ordinance provided
that at the expiration of twenty years
the city would either buy the property
at a valuation to be agreed upon, or
fixed in a certain way, or extend the
franchise another twenty years. OF
course, under the charter as 1T then
stood the mayor and council could not
bind themselves to extend the contract
absolutely, for the charter required a
vote of the people to extend it. But the
legislature of 1883 amended the charter
so as to provide the machinery for as
certaining the value of the plant to be
purchased at the expiration OF twenty
years and to expressly authorize con-
tracts for such purchase; and that
amendment provided that in case the
city should fail to take the necessary
steps to buy. or should the water COM
pany retain it's franchises heretofore
granted until the people at an election
properly called and held should vote to
buy in the manner provided by the
amendment, and that no such election
should be called or held oftener than
once in ten years. In other words, the
city must call an election and get
authority from the voters to buy at
the expiration of the contract, or the
water company would, without further
action by anybody, have its previously
granted franchise renewed for at least
ten years This same amendatory
statute provided: All ordinances hero
tofore passed and contracts made by
the mayor and council of any city OF
the first-class are hereby in all
things legalized, confirmed and made
valid. - provided, that the same
would be authorized by said section
35 as hereby amended This undoubt-
edly validated the ordinance in so far
as it may have been unauthorized by
the charter at the time of its passage, |
merely substituting the machinery of
the amendment for determining the val |
ue of the property and prescribing the |
time and manner of the city's action |
if it should choose to purchase. The |
legislature had power to enact such an
and under decisions of the |