Evening journal., 1900-10-26

GAS DECISION
Chancellor NichOISOn'S Con-
CIuSiOn in Celebrated Case
MAY RESORT TO MANDAMUS
Right Of the Street and Sewer De-
partmeRt to Use City Streets
Is Determined

Chancellor Nicholson's decision IN
the Oxy- Hydrogen injunction complete
is as follows:
The Mayor and Council Of Whining
ton a Municipal corporation OF the
State of Delaware. and William Sim
mons, Ayers S. Webster and James d.
Carter The Board of Directors Of the
Street and Sewer Department of the
City OF Wilmington,
Complainants,
VS..
John Edward Addicks and Oxy-Hy-
drogen Company of the State of Della
ware,
Defendants.
Court of Chancery of Delaware in
and for New Castle county,, October
%, 1900.
HenryC. Conrad, City Solicitor, Lew
is c. Vandegirft, Arthur w. Spruance
and William S. Hilles, solicitors for
complainants.
Austin Harrington, Herbert H. Ward
and c. Berkley Taylor, solicitors for
defendants.
Complainants filed their amended
/ bill in this cause on the nineteenth day
Of June, 1899 by leave of the court
granted May 6, 1899, when l handed
down a decision sustaining defend
ants plea that the bill originally filed
April second, 1891, did not contain
proper parties, Mayor and Council of
| Wilmington, etc. vs. Addicks, ct al,
43 Atlantic Reporter, page 297 &c.
Defendants filed an answer to the
amended bill July 13, 1893, and a
hearing was had on motion for pre-
! liminary injunction upon bill answer
and one affidavit, it being understood
/ that my decision sustaining the plea,
subject TO leave to amend the bill, was
without prejudice to the restraining
order Heretofore granted by Chancel-
lor Salisbury.
The history of this exceptional liti-
CATION was given at length by me in
Mayor and Council Of Wilmington etc.
VS.. Addicks ct al. above cited. Until
the filing of the defendants answer
to the amended bill. at the hearing OF
the motion for a preliminary injunc-
ton now pending, no question was
ever presented to the court by the de-
PENDANTS but that of defective parties
to the BILL the complainants not hav-
ing made the Hydrogen Company
a party defendant, alleging that it was
not an existing corporation Of this
state.
WAS WANT OF PROPER PARTIES.
Defendants first raised the question
of a want of proper parties before
Chancellor Salisbury on motion to dis
miss the bill. then it was raised by
them before Chancellor ad Item john
son, first by demurrer and next by
plea, and finally it was argued before
me upon plea, answer in support Of
plea, replication and proofs.
When ] decided that question, I COM
mented upon the manner in which the
case had been presented to the court
as follows: 'The briefs filed and ar
guments made by the numerous coun-
sci engaged in this cause during the
eight years of litigation, so abnor-
mally prolonged. constitute, when taken
together land they are all submitted
to me by consent of counsel) a verit-
able monument Of industry and legal
research. Although there is but little
in these briefs and arguments which is
not both interesting and instructive
yet there is much that could only be
considered by court on quo warrantC
proceedings, and much that could only
be considered upon pleadings which
brought the cause before the court
upon it's merits for final decision.
Several cases analogous to the pres
ent one, in the one respect that per.
sons have been sought to be enjoineC
as individuals from performing acts
which they sought to justify on the
ground that they were acting as ofli
GERS of a corporation whose valid ex
istence was denied have been decided
by the court of chancery of New Jer
sey, and by the courts of New York
sitting as courts of equity, and have
been cited and discussed by counsel.
(Here follows a list of cases).
But all these cases came before thl
courts upon bill and answer for ;
hearing on the merits. and the court
proceeded to decide finally upon tn,
merits
"In the cause before me- however
. the defendants, instead of answering
, have chosen to file a plea of want O
, parties-a moue of pleading most rar
, in this jurisdiction, but one for whicl
, there is abundant English precedent
, etc"
: EXISTENCE OF COMPANY PROPER
LY BEFORE COURT
The question thus presented by tn
7 plea was stated by me as follows
aTbe question of the existenc
whether de jure or only de facto) c
the ALLEGED corporation called tn
Oxy-Hydrogen company Of the Stat
of Delaware. is at last properly bsfor
!, this court and It Is the only questio
I before the court that is seriously con
, tested Indeed, it is obvious froI
, the citations. which have alread
J made from the pleadings etc. that