The Virginia enterprise. [volume] (Virginia, St. Louis County, Minn.) 1893-19??, 1911-08-18
OPINION ON LIGHT AND
Water FRANCHISE
BY 6. 0. Baldwin, Special Attorney tor
City.

City Attorney of Virginia, MINI.
The city attorney, on behalf of the
city council, has submitted to me in
writing certain statement of facts. with
reference to the relations between the
City of Virginia and the Virginia Electric
Power & Water company, and has re-
quested my opinion in answer to certain
questions. The facts stated are as fol-
lows:
l. That the rates charged by the
company for water and fight are in ex-
cess of the amount specified in the fran
chise. to private consumers, and that the
company have uniformly and continually
charged an excessive rate for service.
z. That the company charge $3.50
for laying service pipe from the lot line
to the company water main in streets
and avenues, and in some cases a lager
amount, and private owners claim that
this amount is excessive and not fair
charge for the work done, and the COM
pany decline to install service pipe from
their main to the lot line until this
charge is paid.
j. That the water furnished fire.
quently contains sediment of yellow
or black matter, which discolors the
NJ olyoc
use, especially in localities where there
are dead ends and slight circulation.
4. The company does not at all
times afford sufficient pressure.
3. That the company has not a
sufficient water supply in tanks or reser-
voirs to give the city reasonable fire pro-
lection. r
The questions propounded, upon
which my opinion is asked, are as fol-
lows:
l. Whether or not the franchise
could be annulled and set aside by the
council by reason Of violation of it's
terms by the company, as above noted.
2. Whether or not the city could &C.
quire by condemnation as a municipal
plant the light and water plant of the
company under the right of eminent do
main, as provided by the state law and
the city charter, or whether the ACQUIRE.
ment must be under the method as pre.
scribed in the franchise.
3. Whether the city could proceed to
construct new municipal light and wat
er plant of its own and supply the city
and individuals with light and water
4. In case the city should builo 3
plant OF It's. own, Whether or not IL
would be bound by the conditions in the
franchise to purchase for municipal pur.
poses light and water as specified in the
frachise.
.. In case consumer refused to nav
his water or light bill for the reason
that the same is excessive and exorbtt.
ant and in case the light and waite,
company cut off the light and water SUD.
ply, what right has the city council with
reference to determining the prope,
charge and recurring the company to
furnish light and water service on q
charge which it deems proper. or wha1
other steps can the city take in the
! matter to have light and water service
furnished to private parties at the rate
given in the franchise.
I will give my opinion on the questions
propounoed in the order above Sc,
forth
4. Whether or not the franchise
could be annulled and set aside nv IN.
council reason Of violation OF its terms
by the company, as above noted.
1t is claimed in the statement of facts
submitted to me, as above set forth, tina,
the company is continuing to violate the
terms of its franchise in respect to tn,
charges made by 1t for service, and in re.
spect to the quality Of the service render
ed by it to the city and it's inhabitant
If the company persists in these viola.
lions Of it's franchise, after proper motto.
to 1t to desist, an action may be institut
ed against it to cancel its franchise, 1n
such action an issue of fact would
necessarily be submitted to the court as
to whether the company was persistine
IN material or substantial violations OF
the franchise to the damage of the CITY
or it's Inhabitants. If, from the evidence
the court should find that there was
such persistent violation of the franchise
then the court could render Judgment 70,
a forfeiture Of the franchise: hit forfeit.
ures are not favored by the courts, and
franchises will not be declared forfeited
unless the evidence clearly established
that the company exercising the franchise
has persistently violated the terms Of
the franchise in a substantial and ma.
terlal manner. Furthermore, if the court
in an action to annul the company's
franchise, should find that there was g
persistent violation of the terms thereof
IN material way. it would probably
declare the franchise forfeited, unless
the company should, within limited
period to be fixed by the court, desist
from its violation of the franchise and
perform the terms thereof according to its
true intent. If the violation consists In
over charges, the court could require the
company TO desist from over charges