Wilmington daily commercial., 1876-08-10
LOCAL NEWS.
The Fourlh Street Pavement.

CLll OOUNCAl4s
About thirty of the property holders met,
last evening, in the second story of the Tel.
egraph Building in response to call from,
the committee appointed at a previous
meeting to get an opinion relative to the le-
gality Of the assessment and collections for
the macadamizing of Fourth street. ESQ.
Frazer presided, and A. L. Sparks acted az
secretary. The following communication
from Chas. d. Lore, Esq. who had been re-
tanned as counsel, was read
WILMINGTON, Aug. Z, 1876.
WM NJ. FRANCIS, Dear Sir:
After careful consideration l am of the
opinion that the city cannot rightfully, or
lawfully, enforce payment OF claims for the
alleged macadamizing of Fourth street,
from Market street to the Christiana river.
Each separate owner will have to resist pay.
ment by injunction, if the city insists on
payment. Property owners cannot Join
suits. Each one must defend for himself.
1t is very doubtful whether owners who
have already paid can recover back the
same, as such payments have been made
voluntarily and without protest.
Yours very truly,
CHARLES B. LORE.
Mr.. Lore's presence being desired to an
swer some questions personally, he was
sent for, and having been informed of the
object of his call he said he had examined
with care the case laid before him, and in
his judgment there were several strong
points which, if tested in court OF equity,
must prove fatal to the city
1. The grade had been changed illegally.
The grades are all fixed by the city, the
ordinance expressly forbidding any change.
The altering Of the grade cannot, there
fore, stand in law.
I'd. The work was not done by contract,
in accordance with the city ordinances z,
which requires all jobs costing over $50
to be given out by contract. The city haG
at first contracted with P Quigley & Go. to
do the work, but afterward annnlled that
contract and completed it by the day.
Sd. The work was, assessed before it was
completed, in direct violation of the city
ordinances.
4th. The street has neither been macad-
amized or paved, and is really an injury
and not benefit, and therefore does not
come within the scope OF the city ordinance
and therefore resistance to the payment of
the liens must be fatal to the city.
Mr.. Lore said the foregoing we're few
OF the strong points, but the case bristles
with defects all through. In answer to
question, he said those who have paid
under legal protest would be entitled to re
cover, provided they were compelled to pay
through fear Of legal process. In all such
cases the protest must be proved. II no
proof could be offered there could be no re-
covery. Money paid under mistake, in
fact, could be recovered, but paid under a
mistake, in law, it could not, as ignorance
of the law is no excuse. Those who have
paid their assessment are exempt from pay !.
odditinnol hill ~ 81
city may do to the street. They having
paid once for paving, are exempt from
further payment though another kind Of
pavement should cost more.
Mr.. Lore did not wish to encourage litiga.
ton, but he advised all the property hold.
ers who had not paid to club together al d
make test of one case, the others all fall
ing or standing by that decision. IL would
cost less for each individual to pay their
assessment than to go into the courts sin
gle handed. Such an arrangement he was
confident could be made with the city. In
order now to stop further payment the
junction from the Court Of Chancery, and
III order to restrain the city from placing
moro of the same kind of sand and mud on
the street as they are now doing similar
injunction must be taken out.
Col. Pretzchner thought well of the
opinions and suggestions of Mr. Lore and
hoped all the property holders would com.
bine together and make test case.
Henry Bringhurst alluded to the adyer-
tised sale OF the Second Baptist church,
and wanted to know if that would make
proper test case.
Mr.. Lore said he had no doubt the CITY
Solicitor would be willing to mako the
church test case, but il he should refuse
TO do so then each individual would have to
get out their own injunction5 and pay the
bills. He further said that he supposed it
was the object of the property holders to
get good pavement and for this purpose
he suggested waiting upon Council and sec
what they are willing to do in the case.
Mr. Sparks reviewed the action Of the
City Council as being adverse to their petit
ton, and thought it would be useless to
go over that ground again.
Col. Pretzchner said MIR. Payntor recon-
mended spIinkling, he was now having lot
OF stuff placed upon the street, as bad as
that already placed there. The street was
wearing into holes, snd 1t would take at the
least calculation $4,000 year to keep it in
order, and 81 coo year to keep it sprinkled.
In ton years this would amount to $50 600
while the city could pave the street now
with cObblo stone or some other kind of
permanent pavement that would not cost
AhhAo bhot 'pGOtObOs anu NOHlu ldsI lNbuIy
years without much repairs.
Alr. Lore suggested the sdyisability of
putting down cobble stone pavement, re-
marking that those who have paid will pay
no more, and those who have not will only
pay their reasonable share
%. j. Horner wanted to knew il those
who have paid and now petition for new
would not be liable to pay again.
Mr.. Lore answered that they would not,
neither would they hSve to pay the differ
ence between the present or any other
kind of pavement, they having already
paid for q pavement.
After few more questions and answers,
immaterial to the main question, Mr..
Lore withdrew, when the chair suggested
the propriety Of a committee Of five gentle
men to draw up proper petition embody-
ing all the points complained of and pre-
sent it to the City Council in person, and
ask that body to repave Fourth street with
a good pavement, the petition to be signed
by the property holders on the street.
Col. Pretzchner approved the gu Jgestion,
and on his motion the following we're ap-
pointed Col. PretZchner, II. L. Albert Jas
=. Heal, John Akin, Sr., and William H.
Robinson.
The Secretary was instructed to notify
Council Of the intention of the committee,
when the meeting adjourned TO meet at the
no1I OP ba ahos