Evening journal., 1897-09-08
THE RAILWAY CLASH.
More Time Wanted Before
Granting the Franchise.
CITY DOES NOT OWN SIXTH STREET

HARMAN ARGUES FOR THE WILL
MINGTON CITY RAILWAY COM
PANY AND HILLES FOR THE
SPRINGS RAILWAY.
The look of expectancy that lit up
the faces of the projectors of the Will
mington and Brandywine Springs Rail-
way Company. as they sat in the rooms
of the Park Commission yesterday af-
.ternoOn to hear the verdict of the Street
and Sewer Directors as to the granting
of the Led of Sixth street for railway
purposes, was put to fight by the decis-
ion of City Solicitor Conrad IL was
that the city does not own Sixth street,
and, therefore, what does not belong to
the city cannot be given away by the
Street and Sewer Directors.
The meeting was an interesting one
from the fact that both companies were
legally represented and a little scrim-
mage followed.
The opinion Of City Solicitor Conrad
was:
Replying to the communication of
your body, under date of September /,
regarding application OF the Whining
ton and Brandywine Springs Railway
Company for privileges in the city
streets. would say
First. No authority exists in your
| body whereby you could grant any
privilege or franchise to use or occupy
the bed of street where the same does
not belong to the Mayor and Council of
| Wilmington. From the best informa-
ton that | have been able to obtain the
city does not own or control the bed
of Sixth street between Union street
and Woodlawn avenue.
Second. There seems to be some
confusion in the charter of the Will
mington and Brandywine Springs Rail-
way Company, and the supplements
thereto, as to whether the railway of
the company is bound to strike the city
limits at the point where it intercepts
Union street. The first act of incorpo-
ration undoubtedly provides that the
railway shall be built to that point. and
the supplement passed in 1895 merely
extends the route of the railway into
the city of Wilmington, without any
change Of the route as established by
the former act. The principal of law
governing the Interpretation of acts OF
the General Assembly is that every ef-
fort must be used to make all acts
stand. and if by any reasonable con
. struction there can be reconciled, The
later act will not operate as a repea
of the earlier On this rule of con
struction it seems to me that the com
pany would have to bring its road 4
Union street; but as this confusion a
to routes is entirely outside OF the cit.
. limits, it is not necessary for your bod
to pass upon 1t.
=, Third. The charter of the Whining
ton City Railway Company, passed il
1864, contains the following provision
The said corporation shall have the ex
elusive right and privilege of locating
7 constructing, operating and maintain
! ing city railway in the city limits.
"On the one hand It is contended tina
this provision gives to the old compan.
the sole right and control of all cit.
railways in this city to the exclusion o
all others, and further that any legisla
ton which interferes with this exclu
T sive privilege Is unconstitutional ol
5 the general ground that it impairs tn
V obligations of an existing contract. Oh
the other hand the claim is made tina
the exclusive privilege can only exten
to city railways as known and under
-, stood at the time the charter wa
granted The only motive power in us
in 1864 on street railways was horse
t power. Since that time both cables an
n electricity have been introduced, an
: the interesting question arises whethe
g this excl-iive privilege extends to thes
Il newer modes of locomotion The Who'll
it question as to exclusive privileges is a
p intricate one and 1t has been argue
J. with much ability before many tribu
II nails in this country and as is usual
the case in legal matters, the court
d have decided in different ways unde
II varying circumstances.
"You will recall in my communico
ton of August II | suggested that tn
resolutions embodying the privilege
ls and franchises requested by the Wi
n mingtOn and Brandywine Springs Raj
s way Company were generally and
it PROPER legal shape and the only add
s. tional provision that ! suggested wa
a an indemnifying bond, whereof
d the city would be saved harmless frol
" any litigation OF from any other caus
Y The legal questions that have sine
been Injected into the case are too gray
: and too important to be determined
even passed upon. by either you or m
p in our official capacity. Our opinion
. would not settle them. They are legi
= matters TO be settled and determined b
~ court, and to such a tribunal the
should be and doubtless will he take
: by the parties in interest.
"The General Assembly in its wisdoi
provided in the supplement to ii
n charter of the Wilmington and Brand.
n wine Springs Railway Company thu
- before said company should enter upo
any streets of the city of Wilmingto
,e the consent of your body should fir
." be obtained. On such terms and col
a. a. ditions as you may impose and requil
so that the question now before yol
= body is as to your willingness for II
company to occupy the streets specific
in the supplement to its charter, and
Or so on what terms and conditions.
n Willard Salisbury. Jr., vice-presidel
of the Wilmington City Railway Con
pany, and the company's legal repr
sentative, was absent. The cOmpan
p however, was represented by Robert
Harman. In addressing the director
Messrs. Simmons and Webster, NJ
Harman dwelt at length on the "exel'