Evening journal., 1900-10-26

possible from the pieadings the precise
question raised upon the motion Tor a
preliminary Injunction, | VIII proceed
70 consider u.e arguments OF counsel,
and state briefly the principal ground
upon which they base their respective
contentious.
CONTENTION or CCMPLAINANTS.
Cimplainants' counsel contend.
First. That the powers granted TO
the Street and Sewer Department by
the statutes recited n the bill cntilcl
AN act In relation To the streets and
sewers OF the city Of Wilmington,
passed April 20. 1887. (being Chapter
lSS. page 352. Volume rs, Delaware
Laws.) include the power either to
grant or refuse to the OxyHydrogen
Company at the discretion OF that de-
partment. permission TO excavate the
streets of the city. Notwithstanding the
grant contained in the charter of that
company passed April 3. 1873, Ito lay
pipes and conductors with all appur-
ienances ..eretO, anu TO erect the
necessary posts and lights in any and
ali the rOads. streets. highways and
pubic grounds I'm the State of Della
ware
statute tho power to grant or refuse
permissD Dn Ia their discretion IS grant
ed to the de, 4.tmont by an act passed.
May IA, 1881, boins Chap.er -44, page
444, Volume 40, Delaware Laws. which
Is as follows: Section l. No curpOf-
alton snail open or cxcayate the bed OF
any street OF highway OF any city,
town or village I'm this state for the
r.n Ion NIL mir
wires or other conductors therein
without first obtaining the consent OF
the duly constituted authorities Of
such city, town or village.
4Ais statute, complainants' counsel
contend applies to the Oxy-Hydrog II
Company, Notwithstanding the broad
terms of It's charter above quoted. and
tney argue tnat such a construction
can ha suata ned not only upon the
ground that it is a legitimate exercise
OF the public power of the state, but
also as an exercise by the Legislature
of the power OF revocation expressly
reserved by the Constitution of 1881,
under which the charter of the Oxy-
Hydrogen Company was granted. They
contend that II operates as a partial
revocation Ol that charter, by taking
from the company the right, if II
should be conceded that It's charter
ever gave it that right (Which they
deny) to enter upon and excayate the
streets and highways of any town. city
or village I'm ,he state. without first
obtaining The consent of the municipal
authority.
DEFENDANTS CONTEND Also.
Lutte hlGHI.
Defendants counsel on the other
I hand, contend tnat the above quoted
clause of the charter OF the OXy-ly.
drogen Company gives 1t the absolute
right to enter upon and eXcayat,
streets and highways without the con
sent Of any municipality, and that any
act of the Legislature passed subse
quenty TO its charter. depriving it O
/ tnat absolute right by comforting upOI
municipal authorities the power 10 re
[ fuse in their discretion permission {,
use the streets. Is unconstitutional.
First On the ground that under thl
police power. the municipal authorl
\ ties cannot be authorized to do NOR
than prescribe reasonable rules ant
! regulations. as to the time and name
OF using the streets and TO impose rea
sonable conditions upon their use, a.
against the Oxy-HydrOgen Company
! Second. That the power OF revoca
\ ton reserved In the Constitution o
/ 1891 Is only the power TO repeal
charter or act OF incorporation. an,
does not include the power to revoke 4
/ in part: and also that the construction
agreement alleged to have been mad'
| between the OXy-Hydrogen COmpan.
and its principal stockholder, Johl
Edward Addicks. and the construction
| by the said 4.ddicks of a gas-holde
under that agreement has created
vested property right, which would de
prlye the Legislature the power of re
vocation in any way.
These are the only contentious
strongly urged. although there are o
course some minor ones.
A vast number ofcases were cited OF
both sides. and the arguments of coun
sci on these important constitutions
questions We're exceptionally able an,
carefully prepared, but after a thor
lough examination OF all the briefs an,
Of the cases cited, and prolongel
consideration of the question presentel
by the pleadings In all its aspects
1 have been finally led TO a conclusion
which seems to me to be obvious am
, inevitable and which renders it un
necessary to do more than very brief,
/ summarize the arguments OF counsel
: before proceeding to state the princi
e piles and authorities. which in m,
p judgment, must control the decision o
. the pending motion.
4 LOCAL RAILWAY CASES CITED.
A large portion of the briefs on bot
3 lsides is devoted to the discussion O
the reserved power OF revocation con
! timed in the constitution of 1881. bu
y lsince those briefs were filed tina
y clause of the Constitution of 1881 ha
/ l1eceived an Interpretation which set
= ties its meaning so far as 1t is in tn
4 power of the Court OF Chancery OF thi
"A state to settle IL. for which see tn
Wilmington City Railway Compan
J. vs.. The Wilmington and Brandywir
B. Springs Railway Company. 46 Atlant
;e Reporter. page rs, where the cou
y states its conclusions as follows:
Al This long review OF the authoriti,
b. shows that there is no decision Of an
"a sort in opposition to the plain logic