The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1897-09-08
AND STILL THERE
Is NO ANSWER.
Wilmington and Brandywine Springs Com
pany rIay Get Answer Next Week.
WHO OWNS SIXTH STREET.
nr. Conrad Says the City Does Not Own
All the Street, Which Helps Mr.. Har.
man In Ills Argument for the
Old Company.

postponement of the Street and Sewer
Departments decision respecting the rights
of the new company to use that part OF
Sixth street.
The directors were in session during the
afternoon and at the meeting the question
was presented. Nothing was said of tho
franchise In the evening AT tho after
noon session both companies were well
represented. AS soon as the board was
| called to order Secretary Wiley read the
| following letter from City Solicitor Con.
rad, giving his opinion OIL the three ques.
tiOns submitted to him by the department:
"Replying to the communication Of
your body, under date Of September !, re-
garding application of the Wilmington
and Brandywine Springs Railway Com.
pany 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 information thit ] have
been able to obtain the city does not own
or control the bed Of Sixth street between
Union street and Woodlawn ave.
Second. There seems to be some con.
fusi on In the charter of the Wilmington
and Brandywine Springs Railway Com.
pany, and the supplements thereto, as to
whe her the railway Of the company Is
bound to strike the city limits at the point
act of incorporation 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 principle of law govern.
ing the Interpretation of acts OF tho Cen
I,I IL. tFnr Ict
be used to make all acts stand, and ii by
any reasonable construction they can be
reconclled, the latter act will not operate
as a repeal of the earlier On this rule of
construction it seems to me that the COM
pany would have to bring its road to
Union street; but as this confusion as to
routes is entirely outside Of the city lin.
Its, it is not necessary for your body to
pass upon it.
"Third The charter Of tho Wilmington
City Railway Company passed in 1864 con.
tains tho following provision: "The said
corporation sholl havo the exclusive right
and privilege of locating, constructing,
operating and maintaining city railway
in the city limits.
"On the one hand 1t Is contended that
this provision gives to the old company
the sole right and control Of all city rail.
ways in this city to tho exclusion Of all
others, and further that Fanny legislation
which interferes with this exclusive privi.
lege is unconstitutional on the general
ground that it impairs tho obligations of
an existing contract On the ether hand
the claim Is made that the exclusive privi.
lege can only extend to city railways as
known and understood at the time the
charter was granted.
1.-The only motive power in use in 1864 on
street railways Was horsepower. Since
that time both cables and electricity have
been introduced, and the interesting ques-
tion arises as to whether this exclusive
privilege extended to these newer modes
of locomotion. The whole question as to
exclusive privileges Ia an intricate ono aud
1t has been argued with much ability be.
fore many tribunals in this country and
as Is usually the case in legal matters the
courts have decided in different ways un-
der varying circumstances
"You will recall in my communication
of August II, suggested that the resolu.
tions embodying the privileges and from.
chises requested by the Wilmington and
Brandywlne Springs Railway Company
and the only additional provision that I
suggested was that an indemnifying bond,
whereby the'vtty would be saved harmless
from any litigation or from any other
cause. The legal questions that have since
been injected into the case are too grave
and too Important to be determined or
even passed upon by either you or me in
our official capacity. Our opinions would
not settle them. They are lsgsl matters
to be settled and determined by q court
and to such tribunal they should be and
doubtless will be taken by tho parties in
interest.
"The General Assembly in its wisdom
provided in the supplement to the charter
Of the Wilmington and Rrandywine
Springs Railway Company that before
said company should enter upon any
streets Of the city of Wilmington the con-
sent of your body should first be obtained.
On such terms and conditions as you may
impose and require SO that the question
now before your body is as to your will
ingness for the company to occupy the
streets specified in tho supplement to its
charter, and if SO on what terms and con.
ditions'
Immediately after the letter was read
Robert G. Harman, who appeared for the
city Company. arose and said as the ex-
elusive right question was one for the
courts to decide he would pass it and con-
slider the question OF the ownership of
Sixth street. In the light Of the solicitors
opinion on the question 1t would be in.
possible. said Mr.. Harman, for the city to
give permission to go on private property.
If tho department is satisfied that it does
not own Sixth street and it would grant
permission for railway company to
occupy it, the department would be doing
wrong, and If there was a 5000 coo
bond indemnifying the city it would not
right this wrong. The attorney paid
special attention to the alleged discrep-
ancy between the charter of the Whining.
ton and Brandywine Springs railway and
tho supplement-. He read the provisions
of both.
The charter stated that the line is to in.
tercept tho boundary of Wilmington fat
Union street, and the amendment reads
that after the boundary is reached it can
cxtcnd Its line along ,Greenhill avenue to
Sixth street. but must first get permission
from the Street and Sewer Department be-
fore it can occupy any of tho city streets.
Mr.. Harman claimed that the road must
be built, completed aud in operation to the
boundary before the company can got per-
mission to occupy the street. He continued
by saying that the department could grant
no franchise until the road is in working
condition to the boundary line. Tho
speaker closed by saying that the Whining
ton City Railway Company was ready to
make traffic agreement with the new
company the same as. it has done with tho
Gordon Heights and New Castle railways,
and land tho passengers in various parts
of the city.
Mr.. Hiiles agreed with Mr.. Harman on
the eXCluSlVe flRlp uueSllOu. hexaculnR
the ownership of Sixth street he said he
did not know that the city company was
the protector of tho Woodlawn Improve
ment Company, whose promise the new
company has that they can occupy the
part OF Sixth street tho improvement |
Company owns as soon as the franchise is
granted. All the new company asked was
what the city could honestly give. His
reference to the supposed discrepancy in
the charter and supplementary acts was
similar to that previously made.
He also claimed that the amendment
granting the Company tho right to come
to Sixth street and Grccnhll avenue
took precedence over tho original provi.
sion that compelled the company to build
Its line to the city limit at Union strcot.
Adjournment was thon made until eve
ming when the matter, however, did not
come before the board Tho directors
said they would not give their answer un.
til Tuesday Of next week.
In the meantime Mr.. Conrad will bo
asked what use would be the franchise for
only part of Sixth street, as the depart.
ment cannot give the right Of way through
to Grecnhill avenue 1t was suggested
that tho company would get permission to
use the part not owned by the city. The
director then said that if this was done tho
4 xtu.l