Gilpin observer., 1909-12-09
T7T7-7-- N - ; ~ - =
NO FRANCHISE
is PERPETUAL
EMPHATIC DECISION OF coLoRA.
DO SUPREME COURT IN LEAD
VILE SEWER CASE.
TRIAL COURT REVERSED
OPINION BY JUSTICE HILL WITH
FOUR JUSTICES coNcURRING
AND TWO DISSENTING.

senver-Even the legislature has
no right to grant perpetual fran.
chise, which would be contrary to the
provisions of article 2, section II, Of
our bill of rights, declares Justice Hill
in writing the opinion of the majority
of the Supreme Court in the case OF
the city of Leadville against the Lead
vile Sewer Company.
The reversal of the trial courts or
der of injunction directed to the city
restraining it from interfering with
the sewer company in digging up the
streets and disconnecting patrons who
refused to pay rent, brought forth
four concurring opinions from Justices
Hill, White, Bailey and Musser.
Judge Musser was especially en-
phatic in his position, declaring that
the sewer company was without rights
OF relief in any particular and that
the property claimed by the company
reverted to the city at the expiration
OF the twenty-year limit, when it's cor
porate existence closed and was not
renewed.
The LeadviIle Sewer Company was
organized in 1886 1t secured from
the city council of Leadville permits
from time to time to lay sewer pipes
in the streets and alleys, but never a
franchise. and the permits were in
definite as to time.
Feb. IL, 1908, the city council re-
voked all permits issued to the COM
cla hn
erty on behalf of the city. Patrons
were advised to pay no more rentals
to the company. Subsequently the
main sewer on Harrison avenue be-
came clogged and the city repaired it.
The sewer company then brought
suit for an injunction to restrain the
city from interfering with the com
pany in the conduct of the business,
and this injunction was granted and
made perpetual. Meanwhile the city
had brought quo warranto proceedings
against the company, requiring it to
show by what authority it presumed
to occupy the streets and collect rent
f-cm the citizens. That suit is still
pending.
The city took the case to the Su
preme Court on writ of error to
have the injunction issued out of the
District Court dissolved.
Justice Hill. in writing the opinion
OF the court, says: after the per
mits were granted the appellee (the
sewer company, having made nc
promise or agreement, need not have
constructed any sewers at all, while
the plea of estoppel (the injunction
against the city,. II sustained. would
entitle the appellee to all the privil
eges of a perpetual franchise Gnclud
ing the perpetual right of digging up
the streets to disconnect consumers)
rights which the Legislature itself
could not grant, being contrary to the
provisions of article 2, section IL, OF
our bill of rights, which provides that
no law making any irrevocable grant
OF special privilege, franchise or i'm
munity shall be passed by the General
Assembly"
The opinion concludes with an or
der remanding the case and modify
ing the injunction to the extent that
the city shall not operate the plant
as its property and the company is
restrained from further digging up
the streets for the purpose of discon
Meeting patrons who have refused to
pay rent.
A dissenting opinion was rendered
by Justice Gabbert. with the concur
renee of Justice Campbell.