Evening journal., 1900-10-26

the city.
The permit had been refused under
the authority of certain statutes pass
ed subsequent to the granting OF the
company's franchise, and the assign
ments Of errors all relate 10 the rul-
mgs of the court below upon the con-
struction and cOnstitutionality OF
those statutes. just as in the present
cause the OXy4HydrOgen COmpanys
contentious depend upon the cOnstruc-
ton and cOnstitutionality OF statutes
passed In this state subsequently to
its charter. The assignments of error,
las stated by the court are as follows:
1. "'rhe acts of 1885 and 1886 are not
Applicable to the relator, for the rea-
sons urged before the courts of the
state; and
2. III they be held to apply to rela-
tor. they are in violation to the con-
stitution of the United States in two
particulars, (a) they deprive the re-
lator of its property without due pro-
cess of law and (b) they impair the
obligation Of the contract between the
relator and the city on the sixteenth
day Of April, 1888. the date of the ac-
Iceptance by it of the provisions of the
city ordinance of the tenth
of that MONTH" And Justice
Lamar, who delivered the
opinion of the court, adds. "all the
ether points may be arranged under
one or the other of the above heads"
All these contentious were carefully
considered and passed upon by the
court, which analysed the statutes and
ordinances and decided all the ques-
tions raised.
In the case Of Missouri ex relatione
La Clede Gas Light Company VS.. Muir
lphey, decided by the United States
Supreme Court October 1897. 1901
u. s.. page rs. the La Clede Gas Light
Company filed its petition for man
damus in the name of the State of Mis-
souri, on its relation against Michael j.
Murphey, street commissioner of the
city of st. Louis, on November 20,
1894, in the Supreme Court of the
state.
/ Chief Justice Fuller in delivering the
iopinion Of the United States Supreme
Court stated the contention as fol-
lows; "On the facts disclosed by the
record. was it the duty of the street
commissioner to issue a permit to the
company to make excavations on
Broadway so that it might place cleo
trio wires under the surface of the
streets? The Supreme Court of the
state held that it was not the duty
Il of the street commissioner to do so.
Did that court in so holding give eff
feet to ordinances impalring the OBJ
legation of the contract created by the
lcOmpanys charter?"
AS in the New York city case and
in the cause now pending, the plead
ings raised questions concerning the
extent of the franchises granted to the
gas company, and the construction
and constitutionality of subsequent
ly enacted statute; but it appeared
that the gas company and
failed to comply with certain reglila-
tions and ordinances of the city of st.
Louis. whose validity was not disputed
by it, and therefore the State Supreme
Court refused the application Of the
company on that ground solely, and
declined to pass upon the cOnstitu-
tional question raised, as being un-
necessary to decision.
CHIEF JUSTICE FULLER QUOTED.
In referring to this Chief Justice
J Fuller, says, "If requirements were
exacted or duties imposed by the or
dinances. which if enforced, would
have impaired the obligation of the
cOmpany's contract this did not re-
. lieve the company from offering to do
. those things which Il was lawfully
bound to do" and then after sustain
ing the right of the state court to alb
} strain from passing on the cOnstitu-
tional objections, when it had this
J clear ground for its decision indepen-
I IDENTIFY OF the federal question, the
chief Justice concludes. 1T must be
= remembered that the case does not
come before us from the Circuit Court.
p This is a writ of error to revise the
judgment OF the highest tribunal of the
: state. and this we cannot do unless
federal questions have been enron
eously disposed Of"
These two cases coming up to the
United States Supreme Court from III,
States of New York and Missouri
where the courts possess a blended
jurisdiction, are striking examples oi
the only correct and adequate method
of obtaining and adjudication OF the
: conflicting claims of the parties to the
7 present suit. In neither of those cases
+ apparently. did it occur TO the corpora
tion seeking to excavate them pending
- the adjudication OF their rights by {
t court of law upon a petition for man
Y damus to be filed by them in the Su
= perior Court in and for New Castl'
3 county. In that event, such an in
d junction could in no way affect. thu
e right of the xy-Hydrogen Compan!
to apply Immediately to the Superio
r Court for "a writ of mandamus to com
? pei the Street and Sewer Department
, to grant it the permit pronounced in
S dispensable
D And then, supposing that the chan
d cellor had seen fit to give as his rea
= son for granting such injunction, tina
d after examining all the questions il
dispute between the parties he was o
y the opinion that il was within tn
e legal discretion of the department
= either to grant or TO refuse the permit
j. how could the reason which caused tn