Evening journal., 1900-10-26

partment to open the streets of the
city for that purpose, the chancellor
says:
1T is to be regretted that the Oxy-I
Hydrogen Company did not pursue the
course adopted in these cases. at the
outset of its controversy with the city
authorities, instead OF attempting toI
enter upon and eXcavate the streets of
the city of Wilmington in spite OF ilsI
failure to obtain the permit required
by the city ordinances. For, if it had
failed to obtain the coveted permit
after making application for one to the
Street and Sewer Department in the
manner prescribed, and then at once
applied to the Superior Court for a
writ of mandamus to compel the Street
and Sewer Department to grant the
permit, all the questions that have been
raised successfully IN the course Of the
long Chancery litigation which ! have
outlined first. by motion to dismiss
the bill; second, by demurrer; third,
by plea, and finally by answer), would
have been necessarily passed upon by
the Superior Court in their decision of
the manudamus suit and had appeals
been taken by either party they could
all have been finally and authorita-
lively settled by the appellate tribunals
long ere this"
SHOULD APPLY FOR MANDAMUS.
In this condition of deadlock and
confusion, the only course open to the
defendants would be to apply to the
Superior Court for the mandamus that
they should have applied for in the
| first instance and meanwhile the prac-
tical consequences of the Court of
Chancery's assumption OF jurisdiction
in disregard of the time tested princi-
pies which render it so potent and ef
/ ficient a tribunal when acting within
its jurisdiction. would be such as to
bring serious discredit upon the ad-
ministration of justice in this state.
! l have closely scrutinized every
case cited by counsel on either side
upon all the points in this cause, and
| am unable to find a single authority
which I consider to be in conflict with
the conclusions to which ] have ar
rived in reference to this question Of
! jurisdiction. Indeed, but three cases
have been cited in which a controversy
/ between the municipal authorities and
an individual or corporation ia Iela-
ton to q permit to enter upon or ex-
cavatc the streets of a town or city
has been brought into a court OF
equity.
In one of them. Chicago Municipal
Gas Light and Fuel Company VS.. Town
OF Lake, % n. e., page 617, the gas
company filed a bill in the Circuit
Court of Cook County, Illinois, to en-
join the town of Lake from preventing
it from laying gas pipes in the streets
Of the town.
j. appears, however, that IN that
case the gas company based It's claim
for the interposition of a court OF
equity upon an alleged lease from the
town, and Baker Judge, in his opinion
says, "the bill of complaint in this
case. though not strictly a bill for the
specific performance of a contract, in
Substance a bill of that kind" This
was of course pre-eminently ground for
the interference of a court of equity.
In that case the injunction was re-
fused.
Another was a New Jersey case. in
habitants of the city of Trenton VS..
Trenton Passenger Railway Company,
q Atlantic Reporter page 4S3. In that
case a bill was filed by the city to en-
join the railway company from re-
, building its roadway, and the iujunc-
ltion was granted -
In that case the ice-chancellor re-
ferring to the railway corporation
says. Before commencing the removal
Of the old roadbed, its president met
one of the members of the Board of
Public Works and informed him that
the defendant company intended tC
begin and carry on this work. The
defendant insists that he obtained the
permission of this member of the
Board of Public Works and that il
was only after he obtained such per-
mission that the company commenced
the work of rebuilding"
The vice-chancellor further says:
"rhe defendant most wisely or pru-
J Identity" yielded to all the claims OF
authority in the premises made by the
complainant, and in fact it is difficult
J TO see what question the defendant
e raised for the court to decide, mas
much as it was impossible for il tC
! lcontend seriously that the oral per-
mission informally given by one mem
/ ber Of a board was the permission ol
! the board, and that was all that ap
. pears in the vice-chancellor's opinion
to have been offered by way of defense
. or excuse.
: The third and last case is a Penn
A lsylvania case. and in that alone of al
r three cited in this cause, either by
p complainant or defendant, were ques.
G tions brought before a court sitting a.
= court OF equity similar to those pre-
e sented by the pleadings in this cause
y In that case, the Philadelphia Com
r pany VS.. Freeport borough. appellant
% l67 Pa. State. page 279. the complain.
t ant a natural gas company. filed a bill
= in the Court of Common Pleas Of tn,
county for an injunction restrainin,
= the Freeport borough from interferinl
: with the construction of twenty.
[ inch pipes in certain streets in tn,
n borough, and to prevent the defendant
T from exacting a bond or money as
o condition to its consent to the use o
t the streets for said pipe.
/, The Court of Common Pleas granite,
e the injunction prayed for but the Su