Evening journal., 1895-10-17
SPRUCE ESTREET TRACKS
The Street and Sewer Directors
No Power to Make Contract.
OPINION OF CITY SOLICITOR FILED


The wIImiugton city Railway Company
Cannot Secure Perpetual Monopoly
of the Public Highway and Keep out
Any other Company-Text OF the opin-
Ion in Fuli.
City Solicitor Harman has rendered the
following opinion relative to the city
railway company's tracks on Spruce
street.
To the Board Of ! 'sctors Of tho Street
and Sewer Dspsrtm 4t.
Your letter with regard 60 the VIII
mlngton City Railway Company and its
Spruce street tracks has been received
The company is willing to take up said
tracks aud make osrtain repairs upon the
condition that the Board OF Directors OF
the Street and Sewer Department will
sigu a contract with said company TO the
effect that IL, the Wilmington City
Railway Company. shall hav, the right to
relay tracks on said streets when It shall
d sire 10 actively operate It's lines
thereon Ia othor words it wants the
Board OF Directors Of the Street aud
Sewer Department TO contract C) That no
other company shall lay tracks on said
street. (2) That II. the Wilmington City
Railway Company, shall have the right
to lay tracks on said streets when It 80
desires at any future time, 80 that it
asks not only for exclusive privileges,
but exclusive privileges OF future
nature that it may never ex-
erclse. In deciding whether or
not the board OF directors Of the Street
and Sewer Department can execute a
contract Of this kind. we have merely 10
decide whother or not II can. for Itself.
and perchance, It's successors, tie up. or
part with, the due exercise OF It's police
powers; for the proper care. manage
ment and control OF the streets aud high
ways ls an exercise OF the police power
pure and simple. And Of this question
there la no possible doubt Public
streets are public high ways and are aud
must be held In trust for the public and
for public purposes aud none other
IL the Board OF Directors OF the Street
and Sewer Department could make
contract OF this kind, II could
d. that which might be TO the detrl-
ment, instead of the benefit OF the
public Another company might wish
to lay tracks on said streets which TRACKS
would be great accommodation to the
public. and yet II could not do So
Another company might not only
wish TO do this, bat might
also agree to give lower fares
and yet the hands Of the Board OF Direc
tors OF the Street aud Sewer Department
would be tied II would be powerless 10
act for the good Of the people, aud
Notwithstanding all OF this. the present
company might decline TO lay tracks 40 all
And AZ Judge Comstock. OF New YORK
IN late and well considered case said
Time and experience may give a very
unfavorable solution TO the question
whether this railroa or any other rail.
road can be beneficial TO the public. bu
the hands OF the city government will b
tied by this contract into which II hR
entered, aud future changes and improve
ments viii be prevented BY the voluntary
surrender On effect IN perpetulty) OF III
own powers II Dillon, $50 --and Il
the same point Mr. Elliott In his worl
on Roads and Streets" on page $40
writes as follows: I'VE very mucl
doubt whether general grant which
would prevent the municipal authorities
from granting privileges to other com
psnies would be valid ia cases where Chi
1 tlkub W use INC uikhWhl 10 lott cuNihoi
to the licensee, for this, we believe, woull
be a surrender Of the police power
which the constitution will not permit
The legislature cannot bind itself no
to legislate for the welfare OF the publ
and It would seem to follow that
cannot rightfully place Itself. In 4
position where IL cannot make provision
for the public necessities II f. caunot do
II a. L. q L.s aN "a al
leaves IL entirely In the discretion Of
private corporation to provide or decline (
provide the fscllilies for travel upon th
bie hways which are demanded by th
public welfare and lastly Mr.. Booth, j.
his work on street railways, page
briefly clearly and directly TO the poln
says: Common councils aud munic'pl
boards and officers clothed wit
not. either for themselves OF thel
successors, abrogate the authority wit
which they are invested.
We are therefore Of the opinion tbs
tho Board Of Directors OF the Street an
Sewer Department, has not the power O
authority to enter into a contract Of thl
nature Very Respectfully,
ROsERT g. HARMAN, City Solicitor
In addition to this Mr. Harman de
llvered a verbal opinion to the eisct tha
II the Wilmington City Railway Com
peny failed to keep the streets pave
between the tracks and three feat o
each side, and keep such pavements /
proper repair, the Street aud sewe
department has the right TO pave an
repair and charge the expense b tue
railway company
Poison In Their cider.