The Wilmington daily Republican. (Wilmington, Del.) 1890-1902, 1899-04-26
CANNOT USE
PUBLIC ROAD.
Rodney Tells Levy Court
1t Has Not the Rightto
Grant the Railway
Franchise.

join II. Rodney. attorney for the Levy
Court, yesterday afternoon submitted an
opioion to the court relative to tho right
of that body 10 grant the New Castle and
Delaware City Electric Railway Company
the privilege Of laying it's tracks along the
public roads between the towns,
, The opinion was:
My opiuion being requested In regard
to building q trolley road between New
Castle and Delaware City, l have to say
that I do not presume any thing is re.
quired except an expression OF the legal
status of the cass-if the Levy Court has
authority to allow the construction OF
ouch q. road along and over the public
ro6d'. The fact as to whether such use
would interfere with the public In the ex-
ercise of Its rights Is not one which can be
or should be Left to me. Tho Lsvy Court
could decide that be. ter and more salts
fac.orlly than loan.
with reference to the roads themselves
wonld say that In my opinion the Levy
Court has nothing to do with what are
known as hundred roads. Causeways and
bridges are tho appropriate and restricted
matters over which the court has control.
In this connection cannot conceive that
other roads which are placed under road
commissioners, who provide for the
amount necessary to maintain them and
expend tho same, can be considered to be
under the Jurisdiction Of the Levy Court.
We're such to be assumed by 1t, confusion
would result. In my opinion, therefore,
the Levy Court has nothing to do with
any roads save causeways. as are now
under their control, or may hereafter be
assumed by them. This opinion Is not in
conflict to the act 1893. entitled an act
to protect the county roads and bridges,
providing that no electric or other railway
shall occupy or use any county road or
bridge without the consent of this Levy
Court Upon the assumption, therefore,
that the court only has Jurisdiction over
such roads as being causeways, can the
right which the public has to the unre-
stricted use and franchise ot itlbe impaired
by or under the authority of the !. .Lovy
Courp
"In the present case protests and re-
monstrances have been presented by per-
sons entitled to Use the road. Even with
out this think that any consent or agree
mont given by the court to corporation
charging tolls or fares for the use Of or to
occupy the public roads or causeways
would be valueless. do not think any but
Legislature. can confer such privilege.
Before the general corporation act in the
speoiA ahASter was granted permission was,
given by the Legislature to use the public
roads. This meets the requirements sug-
gested by me:
In that act no such permission is found
nor do l think any can be suggested In
ferentially orby implication, inasmuoh as
tho general corporation act. under which
this proposed line ia to be Incorporated.
contains no words either expressly or by
necessary implication, which would be
construed to enable them to use the pub
lie roads. OF course, II no such privilege
could bo inserted In the charter obtained
40 much more could such privilege not
be granted by the Levy Court? Of course
this right to use the public road by q
private or quasi-public corporation could
be as we'll, and perhaps even more appro.
pEiately given bya private person as by
the Levy court As an Illustration against
such gr mt. 1t may be snggestsl Il o. the
reasoning that would allow trolley road
such privilege would allow any other mo-
tive power, not excluding steam.'