12-811.   Purchase by city of corporate utility plants upon expirationof franchise; petition to court; notice; appraisers; election; bonds.In any city wherein the franchise of a corporation supplying water,natural or artificial gas, electric light or power, heat, or operating astreet railway, has expired or will expire before the completion of theproceedings contemplated by this section, unless an earlier date is fixedby the franchise, the governing body may by resolution declare it necessaryand for the interest of such city to acquire control and operate any suchplant. Upon the passage of such resolution an application may be presentedin writing to the district court of the county in which such city islocated, which shall set forth the action of the said city relativethereto, and a copy of the resolution so passed by the city, and prayingfor the appointment of commissioners to ascertain and determine the valueof such plant.

      Thereupon a time shall be fixed for the hearing thereof, of which eitherat least ten days' notice shall be given in writing, or at least thirtydays' notice shall be given by publication once in the official city paper,to the person, company or corporation owning said plant and to all personshaving or claiming liens on such property: Provided, That publicationin the city paper shall not be made until an affidavit has been filedshowing that actual service of notice cannot be made and that a diligenteffort has been made to obtain such service, and said court shall make anorder granting such application, and provide for the appointment andselection of three commissioners, one of whom shall be selected by thecity, and one by the person, company, or corporation owning such plant, andthe third shall be designated by the judge of the court, who shall be anexpert engineer; and the said commissioners shall take an oath tofaithfully, honestly and to the best of their skill and ability, appraiseand ascertain the fair cash value of said plant and the appurtenancesthereunto belonging or in any way appertaining to same; but in thedetermination of such value said commissioners shall not take into accountthe value of the franchise or contract given or granted by said city tosuch person, company or corporation.

      The said commissioners shall carefully examine said plant and mayexamine experts and persons familiar with the cost, construction andreproduction cost of such plant, and resort to any other means by whichthey may arrive at the value thereof, and the city or the person, companyor corporation owning such plant may produce such testimony before saidcommissioners as in their judgment seems necessary and desirable. Saidcommissioners shall make their report in writing under oath and file thesame with the clerk of the district court. Each party shall have ten daysfrom the filing of said report to file exceptions thereto. Thereupon at atime to be fixed by the court, of which each party shall have ten days'notice in writing, a hearing shall be had upon the said report and theexceptions thereto, and the court thereupon shall confirm, reject or modifysaid report, and its decision therein shall be a final order from which anappeal may be taken to the supreme court. If any city by a majority vote ofthe electors voting upon the proposition at an election called and heldaccording to law shall elect to take the property at the amount soascertained, the governing body is hereby authorized to enact a properordinance providing for the issue of bonds according to law to be sold andthe proceeds thereof used for the purchase of such plant.

      If the city elects to pay the award of said commissioners as approved bythe district court it may do so at any time within six months from the dateof final order of the district court on the report of the commissioners ifno appeal to the supreme court be taken, or from the final judgment in casethereafter an appeal is determined, by paying the amount of the award tothe clerk of the district court, and thereupon the title, right andpossession of such plant and appurtenances shall vest absolutely in thecity and the city shall have the right to enter into and take possessionthereof. The court shall make all orders necessary to protect such city inthe possession of the property and plant. When the purchase money is paidinto court for such plant, it shall be paid out only upon the order of thecourt. If there are any liens or encumbrances upon such plant, the natureand extent thereof shall be ascertained by the court after fixing a timefor the hearing, of which all parties in interest shall have sufficientnotice. The ascertained liens and encumbrances shall first be paid out ofthe said fund and the balance to the person, company or corporation owningsuch plant.

      History:   R.S. 1923, § 12-811; L. 1941, ch. 105, § 1; June 30.