Evening journal., 1899-05-06
OXY- HYDROGEN WINS
Its Charter Is Good and Also
Perpetual.
THE CITY MUST PAY THE COSTS
CHANCELLOR NICHOLSON REM
DERs A DECISION MAKING THE
-5ZY1TTY DROGFSN COMPANY - 4
PARTY DEFENDANT.
PARITY DEFENDANT.

a big legal victory over tne CITY ana TX |
may eliminate in the opening of the !
streets to the gas company ard in a bit |
ter war between 1t and the Wilmington
Coal Gas Company which nosy enjoys a
monopoly. In fact, there are those who
predict that in consequence Of the decis-
ION J. Edward Addlcks will secure con-
trol Of the old company. but this is der
MED by men closely connected with 1t.
Chancellor Nicholson this morning
handed down the long-deferred decision
in the case Of the Mayor and Council OF
Wilmington. at the instance Of Joseph l..
Carpenter. Jr., ]. Newlln Gawthrop and
Samuel Chambers, the Board OF Directors
OF the street and Sewer Department
complainants. vs.. John Edwadr Addiclzs
John C. Baker. Frederick p. Addiclxs
Simon Conde and Samuel Austin. defend
ANTS.
1t was an injunction bill. William S.
Hnles and Arthur w. spruance were So
licitors for the complainants. and Herbert
H. Ward, Austin Harrington and c.
Berkely Taylor solicitors for the respond
ents. The cause was brought TO hear
ing before the chancellor upon bill, plea,
answer in support Of plea, replication and
proofs. The substance of the plea was
that the bill did not contain proper par
ties. 1t alleged that the respondents
named in the bill were the Officers, agents
and employees of the Oxy-Hydrogen Com
| pany Of the State of Delaware. and that
the company ought to have been made a
defendant.
THE CHANCELDOR's OPINION.
The chancenor's opinion covers TWEEN
ty-eight pages Of manuprint. 1t reviews
the case from Its incipiency and deals
with its progress through the hands OF
Chancellor Salisbury. Chancellor ad
litem johnson and himself and concludes
as follows:
Il am unable 10 conceive any intelligent
construction of the phrase incorporation
} for public improvement which will ex-
clude a gas company empowered. as was
the Oxy1Iydrogen Company Of the State
Of Delaware, to lay pipes and conductors
with all appurtenances thereto and to
erect the necessary posts and lights in
any and all the roads, streets, highways
and public grounds in the State of Della
ware, and do all things necessary to the
purpose Of lighting the same
Therefore the charter of the Oxy-Hy-
drogen Company being in terms perpet-
ual and as a corporation for public i'm
provement, being specially exempted from
the constitutional Limitation Of twenty
years, 1t Is a perpetual charter, subject
only to the consttutionally reserved
power of revocation by the Legislature.
1T follows, therefore, that the renew
u ing act above recited has no application
s whatever to the Oxy-Hydrogen charter
d and any further comment upon the argu.
ments connected with it is unnecessary.
1T may be argued, however that
charter being "a contract with two par.
ties the acts of the stockholders of tn,
~ said Oxy-Hydrogen Company, one of th'
parties already set forth declaring thei
i acceptance Of an alleged renewing act
and attempting to do all the acts anC
things necessary to obtain the benefit o
its provisions. amounts to a surrender O
10 forfeiture of the existing grant of per
II petual charter. But whatever may b.
n the force Of that contention It IS a ques
't tion which is not before me. The onl!
a way to raise 1t is by quo warranto pro
L ceedings in the name Of the state, as 1
~ is one Of the absolutely settled principle
4 of corporation law that the state alon
E. can proceed to exact a forfeiture.
re AN act was duly passed in 1873 incor
ne porating the Oxy-Hydrogen Company o
Is the State of Delaware; that act contain
es ing no express Limitation OF time, was O
H. its face perpetual. 1t was an incorpora
n' tion for public improvement and there
iie fore in terms exempted by the Consutu
a. tion by the limitation Of twenty years ar
al plicable to other corporations.
iy "A regular organization and user TO
n lowed. and no objection remains whic
n upon any theory would be within tn
competence Of this court to pass upon.
with subsequent Inconsistencies in th
conduct of its stockholders, and the p'
sition assumed by the company and 81
500 counsel, 1 have nothing to do. For Oh
les purpose of this suit the OXy-Hydroge
Company of. the State of Delaware Ia
been shown to be an existing corporate
hu of this state and a necessary panty
nd this suit; therefore the bill is fatally d.
fective for want of a necessary party.
is the settled practice of the Court
1o bill, but to give the complainant leaN
iii to amend upon the payment Of cost
7 Chancellor Kent, in Cook VS.. Mancius,
law Johnson CHI, 427; Chancellor Bates
et- Satterthwait VS.. Marshall, Del. Chai
Ter Gerry, SS7.
IN Il shall let the cause stand over wi
,u liberty to the plaintiffs to amend the
bill by making the OXy-Hydrogen Cor
pany of the State Of Delaware part
er and It must bc ON the payment Of q
fit, costs Of the pleas amd subsequent pr
ns' cecdings. Leave to file the supplement
bill filed at the hearing is refused"
After some inquiries by Mr.. Ward
ION to the present application Of the pr
Inv limnary injunction to the parties nam
. IN in the bill. and receiving a reply that
viii stlll applied. the court turned its atte
,,a tion to other business.
IN. 1t now remains to be seen whether I
city viii amend it's bill or drop the ca
the chancellor having established the y
lldity OF the charter as well as its p
petuity.