The daily gazette., 1883-05-25
WILMINGTON, DEL. FRIDAY, MAY 25. 18'

a motion to draw an order that the "the
City Solicitor be heard"
The amendment to hear the City Solicitor
was lost by vote of Z to Is, and then the
motion to draw the order to pay the Water
Department pay roll was passed by the fol-
lowing vote: Yei s-Bailey, Beecher, East
burn, File, Garrett, Grubb, johnson, Miller,
Moore, Quinn; Smith, Stevenson, Talley,
Turner and President Conrad-15, Nays
Adele, Baugh, Blake, Denney, McKenna,
Newell and Shaw
The Street Commissioner reported 26 men
and 8 single teams employed, with pay
roll of $500 %.
Petitions were read and referred, as fol-
| lows:
From Cyrus Stern and others for a gas
lamp at Fifth and Willing streets.
From j. r. D. Seeds and others for the
| curbing and grading of the east side of
jackson street, between Ninth and Hazlett
streets.
From j. T. Bird for the refunding of 80
| overpaid water tax
From james Riddle Sons & Co. and others,
calling attention to a defective gutter at
Delaware avenue and DUPONT street, and
asking that it be covered with iron plates.
A communication was read from the
Board of Health, complaining of a failure
of the contractor for removing ashes to visit
Street Committee.
Mr.. Talley presented the resignation of
Geo. W. Todd, Inspector of election for tie
Eastern District, Seventh ward. 1t was ac-
cepted and John W. Hawkins elected to fill
the vacancy.
The resignation of Charles Wesley Sim
mons, Assistant Inspector of the Ninth
ward, was accepted and Harry f. Hoffman
elected to fill the vacancy.
The following opinion of the City Solicit
tor, relative to the constitutionality of the
Water Commission bill, was read:
After stating that he had been called on
to prepare an opinion upon the constitu-
tionality of the act creating the Water Com
mission, the Solicitor says:
''The city Of Wilmington is a municipal
corporation constituted as such by the
General Assembly of this State, and the
General Assembly, which creates this cor
poration under the name of the Mayor and
Council of Wilmington can at its pleasure,
take it out of existence. The charter of the
city of Wilmington does not constitute a
| contract between the State of Delaware and
the municipal corporation in question, so as
| to deprive the State of the right, through
the General Assembly, to modify or repeal
the charter at will. The principle of law
| must be taken subject, to the exceptions that
the General Assembly cannot pass law i'm
pairing the obligation of contract, nor can
1t divest the municipal corporation of its
vested rights in property. When the
| General Assembly created the municipal
corporation of The Mayor and Council of
| Wilmington the distribution ofpowers and
the agencies through which they were to be
exercised were not confded by the General
Assembly to the corporation Itself, but in
the charter the agents were nominated and
/ al nd nj nd
and assigned. Thus the Mayor of the said
| corporation is one agent in the local and in
| ternal government thereof and the Council
| is another, and the powers of both are as
signed and limited by the General Assembly
| The powers SO assigned to these different
| agencies may, under the right to regulate,
be, by the General Assembly at any time,
modified or entirely withdrawn, and the
General Assembly may create new muni-
| cipal agencies and make a new apportion.
i ment of municipal powers among them.
"The city of Wilmington, as a municipal
| corporation, owns certain water works and
their appurtenances within its limits, the
| title thereto being vested in The Mayor
and Council of Wilmington This prop
erty was acquired by the corporation under
the authority of the General Assembly for
the purpose of aGording to the citizens a
/ water supply.
Cup to April IS, 1888, the date of the
passage of the act now in question, the con-
troll OF the said water works and its appur-
tenances was lodged in that department or
agency of the government of the city OF
| Wilmington known as the City Council,
and such management and control was
only in the City Council, because the Gen
| eral Assembly had seen fit, al its discre-
ton, to conflde to the City Council the
power TO manage and control the same.
"But although the General Assembly did
in the first instance designate the City
| Council Us the agency to manage and con-
troll the water works and water supply, il
need not have done so 1t might have
granted those pov ers 20 any other munich
pal agency And the fact that the General
Assembly did in the first instance cOntide te
the City Council those powers, does not con.
ier upon the City Council aUy vested rights
in those powers against the State.
"The General Assembly has the power at
any time TO take away these powers, in
whole or in part, and to vest them in any
municipal agency now in existence in the
government, or to new municipal agency
created by the General Assembly This the
General Assembly can do by virtue of it,
constitutional power of general Legislative
regulation.
"By the act of April IS, 1888, the man
agement and control of the water work.
and water supply of the city of Whining
ton is vested solely in board of three
commissioners provided for in the said act
The board is further given the control ant
management of all future water work.
property to be acquired by the corporation
In other words the said act takes away
from the City Council certain powers here
tofore exercised by it under legislative en-
actment as one of the agencies of the gov
ernment, and places those powers in the
hands of another municipal agency namely
the board created by the said act, to be useC
for the same purpose
The Solicitor then quotes Sections 2, D, D
8, II, 10 and IA of the act and continues:
"The effect of all these provisions, takeI
, together, is to transfer and vest the entir
, control of the Water Department and waite
supply to and in the Board of Water Com
! missioners from and after their organization
and, in my opinion, this is within the con
stitutional power of the General Assembly
. Nowhere in the act now under consideration
T does the General Assembly diVest the mum
cipal corporation of its property. The It'll
thereto continues in The Mayor and Couu
, ell of Wilmington Nor dues the Genera
Assembly alter the uses for which the pre-
, perty was acquired. The uses remain th
! same. The General Assembly only seeks t
1 regulate the management by shifting 1t troF
i one municipal agency to another"
8 Section X is then quoted and the Solicito
says further:
o 81 have thus considered, and l believe
i fully answered the questions contained II
/ | the resolution of Council requesting m