Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1894-09-20

The case of the Mayor and Council
of Wilmington VS.. j. Edward Addicks
and others was before Henry r. johnson
of Dover, Chancellor ad litem, in the
New Castle county court room last
Friday.
The condition of the case was consid-
cred in view of the testimony adduced
in support Of the plea of the defendants
that the 0xy- Hydrogen Co. was party
to the case and should be Joined in it.
The defendants contend that as the COM
pany was not Joined in the case bill
under which an injunction was obtained
should be dismissed and the injunction
dissolved.
Counsel for the city held that the
company should not be joined on the
ground that its charter expired in 1893
and that it is not now in existence.
The defendants besides John Edward
Addicks are John G. Baker, Frederick
p. Addicks, Simon B. Conde and Samuel
Austin.
William G. Spruance and Edward G.
Bradford represent the city, and Herbert
Ii. Ward and Austin Harrington of this
city and @. Berkeley Taylor of Phila-
| delphia represent the defendants. All
these attorneys were in court ON Fri
day. ]. Edward Addicks was also pre-
| sent.
Mr.. Ward opened the case by reading
the plea and answer of tue defendants.
In this appear the charter of the Oxy-
| Hydrogen Co. granted in April, 1878,
and testimony showing that 1t was
organized in 1887.
After the reading of this matter Mr..
Spruance addressed the court. lie
said that the history as read starts
within the memory of man, whereas
there are some important things
that can hardly be said to be
within that limit. The charter was
granted in April, 1873, and nothing
was heard of it until the latter part of
1890 or 1891, when certain persons
undertook, without the authority or
consent Of anybody whatever, to tear
up the streets of the city. The authori-
ties forbade them, but they determined
to go on and the bill was filed in April,
1891. The bill stated these people had
not complied with certain rules and
requirements, and were attempting, con-
trary to the city authorities, to tear up
the streets; that they claimed to act
under the charter Of the 0xy- Hydrogen
Co. OF 1873, and following that up with
denial that such company was duly
organized and existing.
No answer had ever been filed to that,
Mr.. Spruance said, until that of Janu-
AIRY, 1894, which was solely in support
of their plea. These people chose to re-
main dumb under these charges of law
lessness for three years. The city was con-
| IN M Fralitniunptr fui iifn npti
strained them for the time at least.
After the bill was filed motion was
made to dismiss it on the grounds of in
sutiicency in May, 1891. Chancellor
salisbury refused the application, but
suggested and directed certain changes
in form, SO that the case stands the
Mayor and Council of Wilmington, at
the instance Of the Street and Sewer
Directors.
In June 1893 demurrer was filed to
the bill, the ground being that it had
not the proper parties, but the Chancel-
lor's opinion was adverse To the de.
murrer. They had leave to amend and
they filed plea and an answer which
goes to nothing but to support the plea.
In that plea Addicks claims to be q con
tractor and agent for laying pipes, etc
They do not 90 into the merits of the
bill at all. IL seems to be their purpose
to get the Oxy-Hydrogen Co. party
to this suit.
The company was chartered in 1873
but never any act continued that char
ter, the other side relying on a general
act In 1889 an attempt to get the
, charter renewed failed. They claim
that they are renewed by an act passed
| February 9th, 1891, which counsel fol
the city contend does not do it. The
charter would have expired in 1893
under the constitutional limitation oi
20 years if not revived. The provisions
OF the act of 1891 had been followed.
, The question is whether the act oil
1891 applies. 1t says that charters shall
be renewed Cor the same period as pro
vided in the original acts. The act in
cooperating the Oxy. Hydrogen Go. doe!
not contain any provision rs TO the
: length of its existence. Therefore ht
held that the act Of 1891 does not apply
: aud the charter of tue company was
never renewed.
+ In case the court should think the ac
? of 1891 did apply and the company wa
legally existing, counsel for the plain
9 tiffs would submit a motion for leave t
amend so that the company could b.
S made party defendant, and that thu
!. Injunction should be extended to thu
| company.
. Mr.. Bradford said if the company hat
4 legal existence there is no question tina
= it should be party joined. He helt
> however that the act Of 1891 can hav,
r no application. The courts hold tina
| ,,hnt tk1 T.aIiSloinra 1,1pont tine 1IepiS
lature said.
1 Mr. Ward made the point that tn
G question of whether the company wa
7 in legal existence could not be passet
upon until the company was II party Il
the case. He held that as the act o
incorporation specified no time the ac
: would continue for twenty years unde
! the constitution. lie argued that tn
/. only person in the State who Can ques
: ton the legal existence of the compan
S is the encouragement. He held tina
: the question on this point was not
preliminary question, but that primar
!, question was the motion TO dismiss.
! Mr.. Taylor of Philadelphia held tha
!, the company should be joined IN III
r, case and that the persons in the sui
: were not properly in it as individual
= because they were the contractor;
agents, officers, &C., of the company.
This litigation was commenced an
Al has been prosecuted, he said, with \
q apparent desire TO hamper this compan!
! If there had been an honest irtentio
y to determine the questions they woul
k not have hesitatea, would not hay
e waited year and II ha and plague
d ana pestered the company; they woal
e have included the company.
Il The company has gas holder hel
tl,n ,,iip III, Sui