84 Kan. 654 | Kan. | 1911
Lead Opinion
The opinion of the court was delivered by
The question involved in this controversy is whether the electors of the city of Fredonia are entitled to a referendum of an ordinance passed by the mayor and council of the city and amending and modifying a gas franchise previously granted. On September 20, 1901, the mayor and council passed an ordinance giving L. S. Skelton and B. E. LaDow the right to construct, maintain and operate a gas plant in the city for a period of twenty-one years. The ordinance provided that the consumers should have the option to take gas either at meter or flat rates, and a schedule was set out therein fixing the rates applicable
The decision depends upon the application of a recent statute, and, if it does not control, 'the ordinance as passed is effectual without an approving vote of the electors. Section 1 of chapter 93 of the Laws of 1909
“That if thirty per cent of the qualified electors of any such city, based on the total vote cast for secretary of state at the last general election, shall, on or before thirty days from the first publication of such proposed contract or franchise, petition the mayor and city council to submit to the electors of such city for their approval or rejection such proposed grant, contract or franchise, it shall be the duty of such mayor and council to forthwith submit to the qualified electors of such city such proposed grant, contract or franchise, extension or renewal thereof, for their approval or rejection; provided, that when such petition is filed with the city clerk no signer thereon shall be permitted to withdraw his name therefrom. Fifteen days’ notice of such election shall be given by publication in the official newspaper of such city, and such election shall be conducted in all respects as now provided by law for bond elections in such cities. And in case a majority of the electors of such city voting at such election shall vote in favor of the approval of such grant, contract or franchise, such grant, contract or franchise shall be of full force and effect and thereafter be binding upon such city; but if a majority of the electors voting at such election shall vote against the approval of such grant, contract or franchise, then the same shall become null and void. (Laws 1909, ch. 93, § 1, Gen. Stat. 1909, § 749.)
In behalf of the state it is contended that the proposed ordinance makes a substantial change in the franchise granted, and is a contract of as much im
For the defendants, the contention is made that the referendum provision only applies to the franchise granted and contract made in the first instance or to some renewal or extension of the franchise. These general grants, it is urged, are made for twenty years or some specific period less than twenty years, and they are subject to approval or rejection by the electors. An extension or renewal of such general franchise likewise comes under the referendum provision of the statute, but, whether it be in the original grant or in the extension or renewal of it, there is the specific res
The court holds with the contention of the defendants that it was not the intention of the legislature that a mere change of rates, made under the reserved power intrusted to the mayor and council, which may be frequently exercised, and in many cases where only slight modifications will be made, should be submitted to the electors of the city for their approval or rejection. The purpose was to refer to the electors the general grant which prescribed the duration of the franchise and the conditions under which the streets and public grounds may be used, and other conditions ’ regulating the duties and obligations of the respective parties during the life of the franchise or any renewal or extension of such franchise. The city, however, is not concluded in the matter of rates by that grant, but the power to change these rates from time to time, as circumstances may justify, is reserved to the mayor and council alone.
The writer is unable to agree with this interpretation of the statute, and is of the opinion that the act of the legislature contemplated that upon proper petition any “grant, franchise or contract” between the city and the company supplying gas is to be submitted
The decision of the court is that, a change of rates is not a regulation or a matter for the approval or rejection of the electors, and that as the ordinance in question only relates to the making of rates the peremptory writ is denied.
Dissenting Opinion
(dissenting) : I concur in the dissent of the chief justice contained in the foregoing opinion of the court. The effect of the judgment is to allow the council to strike out the flat rates and compel the consumers to accept the use of the meter and assume additional burdens, while the company is relieved of important conditions. The provision for flat rates and other conditions of the original contract changed by the new ordinance were deemed material by the parties when the contract was made, and the court can not say that they are any. less máterial now. The changes proposed are in rates and also in the conditions provided for the distribution and use of gas, and, as I read the law, are subject to. approval or rejection by the voters.