The Topeka state journal. [volume] (Topeka, Kansas) 1892-1980, 1908-09-30
CITY CAN DO IT.
Judge Doster Holds That Gas
Rates May Be Changed.
Council Has Right to Alter the
Schedule.
FILES AN OPINION.
Franchise May Be Forfeited for
Failure to Furnish Gas.
Puts City in Position to Resist
an Increase in Rates.

Ju0S6 FRANK DoSters who was
selected by Mayor Green upon
authority Of resolution by the coun-
ell TO prepare an opinion Of the
rights OF the city in regulating rates
and declaring a forfeiture of franchise
under the terms OF its franchise
granted to the Consumers Light.
Heat and Power Co.. today wrote out
that opinion and turned it in to the
city authorities.
Judge Doster is Of the opinion that
the city can regulate the gas rates to
be charged for gas in this city.
He is also Of the opinion that the
city can declare a forfeiture of fran
chise for failure to supply an adequate
amount Of gas to the city by the
grantee
In this opinion Judge Doster agrees
with City Attorney Drenning in the
Iatter's opinion that the use of park
ings for pipe lines and the laying of
mains within six feet OF the curbing
are not sufficient grounds for for
pay meter inspection, nor failure to
file platS Of its gas lines and dis
tributing pipes with the city engineer
sufficient grounds to declare a for
feiture OF franchise
Judge Doster's disagreement with
Of forfeiture of franchise for failure
TO supply an adequate amount Of gas
TO the city and its Inhabitants. The
franchise provides that the company
cubic feet OF gas every thirty days, at
least that Is tho way the Judge in
terprets IL
The governing authorities e. O eity
are the trustees OF the interests OF Sn
the inhabitants. The council can
---r- - g.
partial or inadequate service.
The law books are full of decisions
holding that franchises Of municipal
service corporations may be forfeited
by failure TO furnish reasonable or ade-
Quate service. The acceptance of a
ton to deliver the goods. Only the in
herent defects OF the natural product
itself or the failure Of the hest of the
known mechanical devices for its
Stitute an excuse for inadequate ser
vice, and the burden Of the proof must
in this case rest with the gas COM
pany. Failure Of the corporation to
provide adequate service can be en-
forced by the courts Of forfeiture OF
franchise
The Consumers Light, Heat and
Power company cannot impose on the
city the penalty OF any improvident
contract it may have made with any
gas company to furnish them with the
natural product from the gas fields. In
other words the consumers company
cannot, in the event OF an inadequate
gas supply and forfeiture OF fran
chfse staring them in the face, dodge
behind any contract it may have made
coming OF that company that Is sup
plying them with gas
In the matter Of regulation of rates
Judge Doster is plain and emphatic
He holds that the city, under the state
law, has continuing power to regulate
the rates and that this power is alb
soIute, even though a maximum rate
is mentioned in the franchise. In other
words. while the city's franchise to the
gas company specifies that the COM
cents per thousand cubic feet for gas,
yet the city reserves the power con-
veyed by state law to specify certain
rate whenever it shall be thought nee
essary to do so.
Another most important matter
touched upon by Judge Doster in his
opinion given at the special request
OF a member OF the council, is the
power Of the city to collect under the
terms of its franchise, ten per cent Of
the said gas compauy's net earnings
ever and above the ten per cent earn
ings on its investment
Of the liability Of the company to
the city under the terms OF this ex-
pIicit section Of the state law Judge
Doster has not the slightest doubt. The
only question is to find out the earn
ings Of the gas company, and IL they
have been in excess of ten per cent on
their investment, then ten per cent OF
these net earnings from the time the
company has done business here under
its franchise should be paid into the
city treasury
Topeka consumers are now paying
25c per thousand cubic feet for their
gas. and the rate is considered reaS-
enable, but Councilman Hughes has
held all along that the company con-
templates raising this rate gradually
until it has reached the 45c maximum
rate allowed by the ordinance Gen
eraI Hughes wanted this legal opinion
on the city's powers so that the city
would know what step to take in the
event the rates were raised. and could
thus act promptly in the matter
The opinion of so eminent a juriSt
as Judge Doster, which gives the city
full and absolute powers in the matter
concerning the price of heat ana light
this winter, is OF great importance to
all citizens of Topeka On the
strength of this opinion II is expected
that the council viii fight any at
tempt to raise the rates for gas and
attempt to have the Consumers COM
pany's franchise forfeited in the event
of another gas famine this winter.