Omaha daily bee., 1906-01-06
Gas CONTRACT IS CONDEMNED
I7.u.y.sight Dollar Ordinance Denounced
as Excessive, Unfair, Unjust
COUNCIL tNIoMtD FROM CARRYING IT OUT
IudRe sutton Declares Company
Cannot Require Larger Price
than Fixed by Franchise
from the city.

Judge sutton has sustained the fight OF
r. w Blackburn against the contract en-
tA~od into by the city with the Omaha Gas
company for gas at Sos per lamp per year.
The mayor and city council will he tenn
porarily enioined from entering into such
. contract or paying out any money there
under.
In rendering his decision the judge pro-
nounced the five-year contract at SIS EEK
cessive. unreasonable. unjust and upright
eous." lie said. substantially:
The court is not informed fully to all
Tho facts surrounding this case. The city
has made no answer. though the city at
torney has said 81 would answer later. The
gas company has fled answer and Of
fcred no testimony as to the cost Of the
equipment, which it was at liberty to do.
The five councimen who voted for the or
dinance have alone answered. The court Is
not fully informed to the cost Of the
equipment on which it is claimed royalty
is paid but Is satisfied az to what the cost
should be
The court is satisfied that tl4 is the
highest price the city should pay for gas
under the franchise requirements for
sixty-candle power lamp and also that
such a lamp Is the only practicable and
necessary one"
Cannot Exceed Franchise Price.
In no event can the gas company ever
require Il larger price than IL fixed in its
franchise, That provides for $25 per lamp
per year for five feet OF gas per hour The
testimony here uncontradicted is that only
Two and cght-tenths feet OF gas per hour
Is consumed in producing n sixty-candle
power light and three feet and eleven-tenths
Ill, o,,Aa Iioht
''rThc court is satisfied that s14 for the gas
alone is the maximum amount the council
has any power to pay to the company for
a sixty-candle power light This would in
clude lighting, extinguishing and cleaning
The court also is satisfied that SIC is the
highest amount the council can pay the
company for eighty-candle power light.
] have personally examined the mantels and
burners used and have reached the conclu-
sion that - would be fair and equitable
price to allow for the same This, then.
would make SIS the outside limit for a
sixty-candle power light.
UndIsputed Evidence mt Hand.
There is undisputed evidence here, given
10y Mn Zimman and by Mr. Michaelsen.
that to pay for extra candle power beyond
sixty would be a dissipation Of the funds OF
the city, without any value TO the taxpay-
sonal observation of the contrivance used
on the street lamps am convinced that a
contract for an eighty candle power light
would be improvident and could not be car
RED out as the equipment is too delicate
Such a contract would not be valid or bind
ing and the court does not believe such
light can be furnished
"Boyond 81 as an allowance for the man
tel there is no discretion in the council, any
more than there would be for the council
men 10 contract for lead pencils at 81 each
when other people could buy the same pen
cII for cents Beyond SIS for a sixty
candle power light there is no discretion in
the council -rrhe total amount to be paid IN
nny one year should not exceed $T,1o ana
for five years as this contract contem
plates, not exceed $4,000. Beyond thes'
amounts the contract is of no force an'
should not be sustained, as the court be
Iieyes The contract under consideration
would give the company in excess OF thes'
amounts $4,000 per year, or $4,000 Tor nv
wears. such a contract ought not TO b'
entered into
Unusual Circumstance I'm Case.
There are unusual circumstances con
nected with this case, the first OF which II
that the oounclmen would not take TN
legal advice OF the city attorney. but tool
l,any In the second place they deliber
ately violated the order OF the court II
pursuance OF their agreement with the ga
company In the third place the metho'
Of crowding this matter through the coun
eli was very unusual. The mayor an
policemen had no business in that council
chamber at all. These circumstances ar
merely incidental, however, and are con
sldered only as circumstances.
Mr.. connell for the gas company. in
auired OF the court as to the point raise'
by attorneys for the plaintiff. and on whicl
they dwelt with great emphasis, that tn
ordinance and contract modified the orig
inal franchise.
Other Points OvershadOw IL.
Judge Sutton replied that the other point
invr.ived had overshadowed this In hi
mind TO the extent he had really give
that point no consideration and did no
think it necessary to pass upon II at thi
time. He rather felt that the contrac
wat not a modification ~ the franchis,
hut would admit there was room for dis
cussiou.
Argument then arose as TO the form U
the order granting the temporary injunC
ton. After Messrs. Council Breen an
tilller had been heard il was agreed tina
the company shall continue to light ia
streets but shall have no monetary benef
under the contract of october II, but sha
he paid for its service later as its right
may appear
Mr. Breen suggested that the case be ad
ranced for hearing Oh its merits after tn
framing OF the temporary injunction orde
by plaintiffs's attorney, but no decisio