Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1896-03-05


Mr.. Hartman was arguing the law in
the case when adjournment was made
to g. 30 O'Clock.
Il. q. Bradford made a motion for
judgment for plaintiff, notwithstand-
ing affidavit for defence in the cases of
Samuel and j. Augustus McCauley,
executors vs.. William and Maria
Ward Willard Salisbury is on the
other side. The matter will come be-
fore the court again.
In superior court Monday afternoon
City Solicitor Robert q. Harman con
cluded his argument for tho constitu-
tionaity of the act which places the
responsibility for damage resulting
from any hole, excavation or obstruc-
ton in the sidewalk, upon the ad
iacent land owner, unless il was
caused by the city or its authorized
agents.
This argument was upon the ques-
| tion of law which had been raised in
tho case of William II. and Mary A,
| Seward Va. the city. In Its brief the
city laid down the following PROPOSE
| tions:
First, There is no common law
| liability for injuries resulting from
unsafe or defective highways and
streets.
Second, The liability where it OK.
lists, is statutory liability, though
| this liability need not be imposed in
EXPRESS terms, but may be implied, and
| it is implied where the municipality
is; ta) given full control over it's
streets; (b) where the duty to keep
| them in repair is enjoined upon them !;
| tcl where it receives a consideration
for the doing of the work; Id and
whore the duty is purely local and
corporate and not public or govern
mental
Third, Az the Legislature can i'm
pose the duty and the liability, so it
can limit or even completely remove
said duty and liability. unless pre-
vented from so doing by the Constitu-
tion of the United States, or the Con
| stitution of our own State.
Fourth, And as such law as the
above in no way interferes with (a)
vested rights, or (b) impairs the oh
legation of contracts, the will of the
Legislature is supreme, and the law,
therefore, constitutional.
Fifth, But even il it be contract
| las in the case of private cor
poratonl, il the State has reserved
tho right to repeal, alter or amend tho
charter of the corporation-th exer-
else of that right does not Impair
the obligation OF the contract.
(a) This power has been reserved in
our Constitution.
(b) And it's reservation in the Con
stitution is equivalent to its insertion
in the charter.
Sixth, Again, but even if it be a
contract, (as in the casn of private
corporation), and even il there was no
clause in our Constitution reservinE
the right of revocation. &c., still, as
| the law applying to vested rights and
to the impairing of the obligation of
contracts, relates entirely to RETROSPECT
tive and not to prospective Legislation,
as the statute in question was passed
four years prior to the happening of
this accident, it certainly in this case,
can in no way, whatever, be construed
to take away any vested right or i'm
pair the obligation of any contract.
Seventh, IL there be any doubt as to
the constitutionality of the law, that
doubt should be resolved in favor of
its constitutionality.
When Mr.. Harman had concluded
Andrew Il, Sanborn, for the plaintiffs,
presented their brief to the court, and
went into the argument, taking the
ground that the statute was unconsti-
tutional. The brief says that "the
statute destroys the plaintiffs vested
right to tho performance of the CON
tract entered into by the city, when ii
accepted its charter from the LegIsa-
ture, which contract or duty is to keep
its streets and sidewalks in proper
order. The statute relieves the
negligent party and puts the sole re-
sponsibility upon one not negligent in
any respect.
The brief COOS into the duties and
responsibilities of the defendant, say
ing that it is the owner in fec simple
of the land where the accident hap.
pened, and it has the sole and exclu-
sive jurisdiction over and control oi
the streets and sidewalks of the city
and the adjacent land owner has nc
property right in the sidewalk or con.
troll OF it. The defendants charter
does not make it the duty of the land
owner to keep the sidewalk in front oi
his promises FREQ from dangerous holes,
chstructions or defects therein; but
does give the city the right to repair
the same at any time, and charge the
expense thereof up to tho adjacent land
owner.
1t is tho law of Delaware. "That the
acceptance by tho city of Wilmington,
OF its charter, which gives il the sole
and exclusive jurisdiction and control
of the streets and sidewalks of the city,
and confeis upon it the sovereign
power of taxation, by which the means
to carry out its power may be secured,
carries with it primary duty of keep
ing said streets and sidewalks free
from dangerous defects therein and in
reasonably safe condition for the
travelling public" And the city can
in no way escape from liability for its
negligence in discharging this primary
duty.
The brief in the third part considers
the reasons and authorities for the
conclusion that the law in question is
unconstitutional and void, and gives
the following reasons for that conclu
sion: ..
First, Because it violates the Con
stitution OF borh the United States
and the State Of Delaware, by i'm
posing an absolute liability on the ad
/ iacent land owner irrespective of negli
genee thus depriving him of his
property, without due process of law
] Second, Because it absolutely re
lieves the municipality, in its private
: character, from all liability for thu
, negligence in the discharge of it's pri
mary and ministerial duty Of keeping
, the sidewalks in reasonably safe con
, dition.
t Third, Because it absolutely relieves
| the municipality from all liability 10
its negligence in the care of its rea
estate held by it in fee simple-thu
, relieving the corporation, in its privat