Page:Federal Reporter, 1st Series, Volume 8.djvu/217

 OABT V. CITY OF OTTAWA. 208 �"And ttiat he deliver the same to "Williain H. W. Cushman, to be used by him in developing the natural resources o£ the surroundings of the city, and that said Cushman is authorized and directed to expend the saisie in theimprove- ment of the water-power upon the Illinois and Fox rivers witliin the city and in the immediate vicinity thereof, under the franchises and powers which iiave beeu granted for that purpose, in the manner which in his judgment shall best secure the practlcal and permanent use of said water-power in the city and its immediate vicinity : provided, that said Cushman shall execute and deliver to the mayor an agreement from him to the city of Ottawa thathe will, without unreasonable or unnecessary delay, cause a good, sub- stantial, and sufflcient dam to be constructed across the Illinois river above the city, to bring into use all the available water-power of said city at Ottawa, and will construct suflQcient head and tail races to make such water-power available; said races to be constructed andcontinued to the l'ox river below the aqueduct and above the island in Fox river, as fast as the same may be required for actual use, and as fast as said water-power can be leased at fair and reasonable rates, and be brought into actuai operation, and that he will also erect a good, substantial, and safe dam across Fox river, so as to make available the water-powers of both rivers at Ottawa, as soon as the additional water-power created by such dam across the Illinois river can be brought into actual use by being leased at reasonable and fair rates : and provided, also, that said Cushman shall bind himself that, if said workis not constructed asafore- said, he will return said bonds to the city, or the value of the same, and save it harmless from all loss on account of the same, or on account of interest accruing tliereon, and in case said work shall not be completed by said Cushman, then to return the pro rata share of said bonds in the proportion that the cost of the work constructed shall bear tb the part of the work not constructed: provided, that at least one of the dams above mentioned, with the races neeessary to make the water-power thereby created available for praetical use, shall be completed, or the whole of said bonds shall be returned to the city by said Cushman, — the intent of this ordinance being to secure the improvement and developing of said water-power in this city by appro- priating the loan under the ordinance aforesaid for that purpose, or pro rata as far as said water-power shall be made available for praetical use." �On the second of August, 1869, a conlract in writing was entered into between the said city and the Baid William H. W. Cushman, in which he admitted that he had received from the city of Ottawa the bonds mentioned in the f oregoing ordinances, and agreed that he would, without unreasonable or unnecessary delay, construct the dams and races contemplated in the last-mentioned ordinance, and that in case he should fail to construct the dam across the Fox river, and the races, 60 as to make the water-power thereby created available for praetical use, ho -would return the bonds, or the value thereof, to the city, and save and keep harmless the city from all loss on account of the same, or on account of the interest accruing thereon. �It further appears that Cushman was a niembGr of the Ottawa ��� �