The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1905-02-17

probably can easily be Strengthened
out. The other questions which are
involved are of small Importance and
the great bulk of objection which has
been held to the transfer of the prop
erty is now removed. 1t can be stated
with a great deal of assurance that the
city can within very short time now
consummate the transfer of the prop
erty.
4 meeting of the city council will
soon be called to act upon the trans
fer. The mayor and the members of
the city council are highly gratifed as
to the opinion since it has been gen.
orally known that personally Judge
HaZen is not in favor of municipal
ownership and this factor contributes
to the strength of his favorable stand
which follows:
Topeka, Kan. Feb. II. 1905.
ITO the Honorable Mayor and Council
of the City of Topeka
Gentlemen: 4 Pursuant to your re-
quest I have investigated the three
questions submitted to me growing out
of the case of the Metropolitan Trust
company of New York against the To-
peka Water company in the United
States circuit court for the district of
Kansas, and report my conclusions as
follows:
''The questions under consideration
s.First-Does the right of redemp-
ton lie from the sale of the Topeka
waterworks made under the decree OF
foreclosure in the federal court?
''Second-Was the Metropolitan
Trust company, the plaintiff in that
action, authorized to maintain suit for
and on behalf of the holders of the
second bonds?
Jurisdiction of the holders of the third
bonds and were their rights foreclosed
in that suit?
ION the first proposition my opin-
Of 1rer re IN
the federal court barring the right OF
redemption was a proper decree to be
entered in that case. that on account
of the peculiar character OF the prop
erty which was being forecioseo
against our redemption law does not
apply But if the right of redemption
should have been allowed in that case
the parties to the suit are now lore
closed from redeemlng- ihat court
had Jurisdiction of the Subject matter
and Of the parties. 1t was authorized
to decide that question and in It's de-
cision directed that the properly De
sold without redemption. NO excep-
tions were taken to the decision, the
nronertv was sold under the decree,
the sale confirmed and deed exc
cIIted. The right of redemption is cut
off whether the federal court was
right in its decision on that question or
not.
"On the second proposition above sta
ted my conclusion is that the Metropol-
itan Trust company was authoIi1eu ~ ~
foreclose the trust deed in question Ior
and on behalf of the holders OF the sec
ond bonds Under the laws OIL New
York and since April %, 1893, certain
organized under the laws
of that state are authorized TO consoll7
date, and when consoIldaLio4 Wa oe l ~
all of the property and rights OF the !
merged corporations were IrahsIeIIeu
to the corporation into whlcn Iney W ~1o |
merged. In 1900 the legislature OF NV
making if aDpIv specifically to trust |
property and trusteesnlps. L,OuDti.Ss9
the legislature believed that the orlgl-
nal act was not sufficient 10 tIdHS1eA
property held in trust ana tIusteesn4ps' |
and for that reason enacted the amend
ing law of 1900. The conSoIldaCloh o.
the Atlantic Trust company, the VI IsA |
nal trustee named in the oeeas u S.uss
in this case with the MetIopolltal
Trust company took place subsequent
to the passage of the law as amenoeo
The amended law is general III leS
terms and applies to all mergers occur
whether the trust was created before or
after the passage of the ACT, ana ap-
plies to the consolidation or the AlIan-
tic Trust company Win the me- y opoA =
unconstitutional so far as 1t attempts
to apply to trusts created Derore IT'S
passage. 7 see no CONSTITUTIONAL ooJeS-
ton to applying this law 70 tfuse con-
tracts entered into before lts passage.
BY so applying it, it does not impair the
of contracts. Inc contract y
doubtless as valuable after the merger
takes place and a new trustee createo
as it was before. The rights OF the
bondholders are the same aheer tne
merger as heforn% except that by the
merger a new trustee has been created
The trust deeds provide how the trus-
tee may be removed if the bondholders
are not satisfied. and this provision APP
plies to the new trustee the same as 1t
did to the old.