Omaha daily bee. (Omaha [Neb.]) 187?-1922, 1912-03-21
Council Bluffs
CONDEMNATION ACT IN COURT
Three Federal Judges Hearing Des
Moines Water Fight.
BRING INJUNCTION PROCEEDINGS
General Statute Under which Conn
ell Bluffs Secured Its Water
system Being Attacked
vigorously.

The validity OF the special act OF tn
Iowa legislature under which the coun
ell Bluffs water plant was acquired b,
condemnation was attacked in the fed
eral court here yesterday on the groun'
that the supreme court had no authority
TO appoint the three district court judge
as appraisers The attack was made b,
the Des Moines Waterworks company Il
the form Of an application for an in
Junction restraining the city from pro
eeeding under the amended general con
domination law in its purpose to acqulr,
the water plant By the same process
that was used in Council Bluffs.
Judge Smith Mcpherson called upor
Judge Walter /. Smith of the United
States circuit court of appeals and judge
w. H. Munger Of Omaha to sit with
him on the bench TO hear the case. The
history Of the attempts made by Des
Moinez 10 secure ownership Of Its water
plant Is In all material respects a repeti.
ton OF that Of Council Bluffs. The city
has been trying in vain to buy the plant.
Last June a special election was held
for the purpose Of authorizing the issue
Of bonds to buy the old plant or build
a new one. The necessary ordinances
were enacted in the following months and
IN October the way was cleared for the
application Of the statute created for the
relief OF Council Bluffs.
Court of Condemnation.
The supreme court was appealed to TO
appoint the court OF condemnation In
accordance with the provisions OF the
statute and did so. As soon as the court
met and organized, the water company.
appealed to the federal court for re-
straining order on the ground that the
newly devised section OF the states gen.
eral condemnation law that directed the
supreme court to name three district
court judges to constitute the condemna-
ton court was unconstitutional for the
reason that the states constitution did
not give the court any such appointive
powers. This point was fully argued
before the three judges sitting en- banc
yesterday Afternoon by N. T. Guernsey.
attorney for the water company. and by
former Attorney General II. W. Byers.
now corporation counsel for Des Moinez.
assisted by Robert O. Brennan, city So
licitor Of Des Moines. They pointed out
what appealed to the unorthodox lay
mind as conclusive evidence when the
cited sections l and T. article v, OF the
constitution. which seemed 10 expressly
empower the supreme court to make such
appointments. the only technicality being
in the question OF whether the condemna-
tion court was really a'court at all This
was met by the argument that II II was
not court the plaintiff could not appeal
from It TO the federal court. -
Cententionsn OF Company.
The water company had several other
eoptentions. one that It's charter granted
in ISL, was for indefinite period and had
not expired, and that this ancient charter
was q bar to the clty's condemnation pro-
ccedings. The hearing yesterday followed
tho granting Of q temporary writ OF in
junction by Judge Mcpherson at Des
Moines on February 2.
City Solicitor Glenn y. Kimball was an
interested spectator at the hearing. for
the reason that he was the author OF the
amendment 10 the condemnation law that
10 being attacked. He drew the amend
ment only after many consultations with
iurists OF more than a state wide proml-
hence. and recalled the fact yesterday
that the first suggestion to empower the
supreme court TO name the appraisers was
made by Judge Smith Mcpherson. and
that there Is no doubt In the minds Of the
greatest lawyers In the state that the
constitution was In no manner contra
vened by the designation Of the supreme
court az the appointIve power OF the con-
demnation court. Much favorable COM
ment was made yesterday by lawyers
upon the act Of Judge Mcpherson calling
10 his aid the two distinguished jurists.
whose decision win undoubtedly settle for
all time and prevent similar embarras-
ments when other Iowa towns start to
acquire ownership Of their water plants.
Judge Smith was made chairman OF the
court. The case was submitted during
the afternoon and taken under advise
ment. Decision will probably be an
nounced within a few days.