Manhattan ? The fairness and constitutionality of a 123-year-old city policy is being called into question as the commission seeks ways to enhance water revenue.

City Attorney Bill Frost and Finance Director Bernie Hayen said the requirement for Manhattan to give free water to all churches and public schools has been a “pain in the neck” for years. But until commissioners urged the city staff to find a way to end the requirement last Tuesday, the legal hurdles were thought to be too much to overcome.

The city meters the water it gives away, and Hayen said public schools used nearly 11.76 million gallons of water in 2009, and churches used more than 6.14 million. He estimated the city would have received about $200,000 if the water were paid for.

The discussion arose last week, when staff’s memo to commissioners suggested that the city “consider repealing its 1889 Ordinance.” That action would have been fairly easy, if an ordinance actually existed.

A city employee added to the odd drama by contacting the American Civil Liberties Union of Kansas and Western Missouri, which is based in Kansas City. Its lawyer, Dan Bonney, immediately sent an e-mail to City Manager Ron Fehr noting, “that the ordinance clearly violates the Establishment Clause of the First Amendment and is thus unconstitutional.”

As it turns out, the policy comes from a restrictive covenant rather than an ordinance. Frost provided The Mercury and later the ACLU with a copy of an 1887 deed, which was revised slightly in 1889, that records the sale of the land that today houses the city’s water treatment plant.

Manhattan Mayor H.S. Roberts signed the agreement allowing E.B. Purcell and his wife, Elizabeth, to sell the land to the city for $1, on the condition that Manhattan would “in perpetuity supply free water to all churches and parsonages belonging thereto and other buildings connected with said churches or parsonages for the use of either public schools and to the Young Men’s Christian Association in Manhattan City.”

The agreement also states that if the city stops giving free water to those entities, the land would “revert to and rest in the parties of the first part, their heirs, executors and administrators — as if this conveyance had never been executed.”

For Bonney and local ACLU Executive Director Dan Winter, the city’s policy is still clearly unconstitutional, even if churches could theoretically be third party beneficiaries on the deed. He isn’t sure whether churches and schools would have any legal standing if the city started charging them water, so he recommends a safer solution.

He pointed to a Kansas statute against perpetuities that states “a nonvested property interest is invalid unless: The interest either vests or terminates within 90 years after its creation.” He recommended the city go to court and have the reversionary interest declared void. Winter said the ACLU would provide the city with any necessary support.