The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-06-08
wins The POINT.
Clay Center Scores Victory in
Supreme Court.
Need Not Buy the Electric Light
Plant.
END OF THE TOWN ROW
City May Now Go Ahead With
Improvements.
Court of Chanute Held to BE H.
legal.

ownership was won by Clay Center in
the supreme court over the Claw Cen
ter Light & Power company Saturday.
The supreme court holds that the o.
year franchise granted to the company
has expired, and that the attempt of
the city council which granted that
franchise to bind the city to buy the
plant was illegal
1t is sweeping victory for the city
OF Clay Center, and settles the legal
side of the town row. which has been
raging. in Clay Center. Ex-Attornev
General c. c. Coleman and his partner.
+. L. Williams, represented the corpor-
alton which was fighting for life. and
F. B. Dawes and F. P. Hardness rep
resented the CITY,
Topeka people will be interested in
the case. as it at one time had a wa
ter company franchise on it's hands
Which was granted for 81 years and
required that the city either extend the
franchise or buy the plant. 1t was by
use of the power given by that provis-
ion that the company forced the city
to pay $4,000 for the water plant.
The supreme court in its syllabus
says:
Il. A provision in a contract which
is contrary to law can not be enforced
in an action for specific performance. .
~. On April %, 1886, the mayor and
city council of city of the second
class could not under the authority of
bind the city in an ordinance granting
a franchise to an electric digit com
pany, to extend such franchise beyond
the period of q years.
80. An ordinance granting fran
chiSe as before stated, containing a
provision compelling that city to pur-
chase the electric light plant at the ex-
piration of q years in case of refusal
to extend the franchise, is contrary to
law and void"
franchise, the city refused to either re-
new the franchise or buy the plant.
Instead it went ahead and built plant
of it's own. The old company fought
the issuance of the bonds, and fought
the construction of the plant. In the
lower courts the corporation was gen.
orally successful, and the decision OF
the supreme court reverses Judge kim
balls decision, and judgment for costs
is given to the city.
The opinion of the court was de-
livered by Justice Graves and says:
"Many important and interesting
questions have been ably and ex-
haustively discussed by counsel both
in the briefs and oral argument, but
we have concluded that the case can
be disposed of by the decision OF
single question, and will, therefore,
consider nothing further. 1t will be
seen that the statute which conferred
authority upon which this FRANCHISE
was granted, expressly limits the
duration of such grant to twenty-one
years. 1t is needless, therefore, 10
inouire what power the city might
have had with respect to providing
electric light for its streets, lanes and
alleys. and for the use of its 1nhaDl-
tants, under the general welfare
clause and this statute taken to-
gether, if the restrictive clause nad
been omitted. The limitation against
granting such a franchise for period
exceeding twenty-one years amounts
to an absolute prohibition which is
conclusive upon the city ana all otner
persons Both of the parties to this
franchise were bound to take noIce
of the law under which they acted,
and must be held to have contracted
with reference thereto. The city coun-
Gil when the ordinance In. question
was enacted, being without authorlty
to grant the franchise for period ex-
wise, powerless to impose a valid
burden upon the city as a penalty for
refusing to do the act which the
statute prohibited it from agreeing to
do. That which the city was for
hidden to do directly. it could not
accomplish by evasion and indirec-
ton. The evident purpose of the
limitation placed upon the con-
tinuance of franchises of this kind
was to give cities at reasonable in
tervals. an opportunity to revise the
provisions thereof.
In the case of the state versus the
city of Concordia, the supreme court
holds that the city can not continue
to allow its sewers to empty upon the
drv bed of the river, because this con.
stitutes nuisance TINS is a reversal
of the decision of the lower court
The city court of Chanute. which was
created by special act of the 1907 leg
islature. was knocked out by the su-
nreme court on the ground that the act
IS special legislation, and the writ OF
custer against C. S. Nation. who mas
been holding the job of judge OF the
court, is granted.
This decision, however. will not aHect
the validity of the city courts OF kan
sas city, Topeka, Wichita, Leaven-
worth Atchison, Fort Scott and COZ
feyviIie, which were created by special