Omaha daily bee., 1907-06-05
Records Shown to Appraisers and Not
the Water Board
ON THIS POINT RULING Is BASED
Company VIII Garry it to Circuit
Court Of Appeals.
TRIBUNAL OF THE LAST RESORT
Text Of Decision Covers Point on
which order Rests and shovvs
Position of Court ~ 90 the
ControverSy.


! The city q Omaha does not have to buy
4 the Omaha Water company plant FOR sS-
. z63 rs g. the Ju5ce nKed by the board Of
! appraisers, and that apprsiHenent is in p
vRlid-this is the decision OF Judge W H
Munger in the United States circuit court
I for the district Of Nebraska. handed down
/ last evening, thus bringing 10 q elimination
The prolonged fight preciptated BY the
2 Omaha Water board under the provisions
Of the compulsory water plant ownership
law enacted by the Legislature Of l9a2 II
leaves the next step to be taken by the
Z water company IN the form Of appeal TO
I the circuit court Of appeals, and TINS win
! be done In due course % time
Judge MunEer's decision is based upon
one point in the controversy. namely, that
The board Of appraisers erred in receiving
the books and records Of the company for
review without submittinE the same 70 The
inspection % the city or the water board
: C c. Wright one OF the attorneys for the
latter. said he thought the decision could
have been based on a number OF other
points as well.
direct Results of suit.
! The decision was the direct result OF .
4 suit brought by the Omaha Water com
pzny through It's president TO compel the
city Of Omaha 20 buy the plant q the
water company on the basis Of the terms
/ made by the board Of appraiEers
The case was argued about two weeks
ago before Judge Munger by Attorneys
Mansfield OF New York and r. S, Hall OF
Omaha for the wster company and John L
Webster and Carl c Wright for the city
Of Omaha.
Judge MuuEers ruling occRsicnsd no sur
prise. Il appeared from expressions. 70
either side 20 the controversy. Consider
able interest however. centers on the Hc-
ton Of the higher court. Judge Sanborn
Of the circuit court Of appeals has handed
down one decision on the contract phase Of
the question and Il was adverse 10 the
city. As no question Of the federal consti-
tuition is involved in the CONTROVERSY. the
matter wiz not be taken 10 the supreme
court.
The chief contention OF the city in THIS
litigation has been that the app-aisernent
was not arrived Al by an unanimous vote
OF the appraisers and fherefors should not
ne allowed to stand II held the fact that
only two OF three appraisers voted for the
figure named invRlidated the Rppraisement.
while the water company held 10 the the
ory Of law that the superintendent was legal
and binding since where the rights Of a
municipality were involved an unanimous
RpprRisernsnt was not necessary. that that
WAS only necessary where the interests Of
I individuals were a stake.
The appraisers were Daniel W Mead O.
H BszenberE and John ". Alvord. Nr.
Alvord was the one who declined 10 CO.
cur in the appraissmeu;
j Text of the Decision.
The decision OF Judge Munger is:
This is an action for the specific per-
furInEnoe of contract whereby the CON-
Il2inaut agreed 70 sell and the defendant
agreed 10 purchase the water works OF
the complainant al price 10 be fixed by
appraisers, one appointed ~ each Of the
parties and TIE third appointed by the two
others Among the numerous oefenses IN
terposed by the city IL viii be sufficient 20
notice but one
The appraisers in fixing the value Of the
plant awarded something over $4,000
the vHlue Of The plant going concern
in addition 10 its physical value IN deter
rnintng Ire value 81 The plant theT rad a
right TO consider Il as a going concern 1
have no doubt, But il appears from the
record that during the progress u the hear
ing before the board OF appraisers. the
complainant offered 10 permit the ap-
prEiBers 10 examine and inspect their books
and records for their own personal and
private information such books and
papeRs, however not 10 be subject TO inspee-
ton by the defendant OF is counsel no4
the contents 10 be disclosed 10 them. Tllo
inspection by the board Of appraisers Of
the books and records Of the complain
ant was objected 10 by the city. After the
case was finally submitted 10 the board
OF appraisers and the argument lad, the
board Of appraisers requested that The
/, books of the complainant be forwarded 10
Cincinnati for the examination and inEpec-
again protested against such examination
The board appointed an auditor 20 examine
and audit the books ] think n would have
! been perfectly competent and proper for
the board 70 have employed auditor 10
examine the books and papers which were
properly before the board Rs evidence, but I
an clearly Of the opinion that the taking
and TsneivinE of evidence Consisting q
these books on the part ef the board q
appraisers, without permitting rhe same 70
, be examined by the defendant city was
! such an irregulBrity as v1tiH-es the award
? Right 40 Rely On Own skin.
Il is undoubtedly true that the appraisers
( were selected 10y the parties because OF
. 4 Their skin. experience and knowledge as 10
fhe value OF water works property, and
thev undoubtedly had q right il fixing the
value 70 rely 70 q large extent upon their
own personal knuwledEe and Judgment of
the value of such matters. But. in the
very nature Of things II was Necessary for
them 70 take evidence They could not be
expected 20 make such personal inspeo-
ton as would enslAe them 70 Eno" the eZ-
tent Of mains and distributing pipes. their
dimensions or character, evidence would
necessarily have 70 b. taken on thiE point
sThe value Of the water works plant or
Z system. as a going concern Would largely
J depend upon the number oi h0usehold con-
iF a matter which would necessarily. Il
seems 10 me. he largely determined BY ev-
fdenoe. and the books ana records uf the
company would necessarily have direct
and Important bearing upon this question.
When appraisers are required 70 take ev-
! idHnce and rely wholly upon their own
knowledge and judgment, such evidence
should only be taken when an opportunity
Is given 70 the respective parties 70 hear
OF examine the same In this casa aE
stated not only was The evidence received
by thF EnurHiHsrF without the city hEv-ing
Ar rr-norf11ritv % aNauline the same but
against the profess Of ths citg unless surh
sTarntnEfiun EFaE Afforded H. Tndoubfe edlV
I the water company WEE not required. Z
they did not Ree N. 20 ufieT their books as
2 eridence OF present them a be examined
: by The appraiser r should have been
: Acme as any other evidence tE offered 50
! Hs 70 ford ne uTInqEite party an upTsortun-
Z ffy 70 r-roEs-e1zar m f,e and ~outr0vert
Reserves Views On Othera-
: The awarding heirlF invalid for rtlfs rea-
. Eun if follows fhaf fhF relief asked ny fEH
complainant ~ denied. As the case Wi.l
dUuhtless be appealed DO not express . y
views upon Other gueEti0ns raised and
FuFr armed