Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1900-05-31
ARGUMENT IN RAILWAY CASE.

'HtN. - 7'
Peoples Co.'s Attorneys Hold That Lcgis-
iature Has Right to Revoke q Franchise
!. Of City Railway.
The argumea. in the injunction case
of the Wilmington City Railway Co. vs..
the Peoples Railway Go. was concluded
before Chancellor Nicholson Tuesday
afternoon. William s. Ililles, for the
Peoples Co., argued against the claim
OF exclusive right made by the City
Railway, and hold that the Legislature
had the right TO revoke the charter of
the complainant.
He said that apart from the claim Of
the exclusive franchise the complainant
has nothing upon which to base its
position. ut has been determined in
this State, in accordance with the over
wheming weight Of authority that the
complainant has SIMPLY an easement in
the street to be used by 1t subject to
the proper and lawful use Of the said
street by others. The crossing Of tho
tracks Of one railway company by
another properly authorized so to do is
not an injury sufficient to warrant tho
issuing of an injunction when there is
no threat OF improper use of such
authority, rs in this case.
Col. Benjamin Nields, for tho Peoples
company, commended that it has hoen
duly organized and is IAN existing COR
porat,on. He said that the only new
question presented by this case, for the
consideration of the court, is the effect
OF the Constitution of 1897. IF, upon
a proper construction, tho Constitution
Of 1887 operates to change revoca6le
charter OF the complainant into an
irrevocnhle charter, then tho rule Of tho
Dartmouth College case applies and the
charter of the complainant is protected
from revocation by the Constitution of
the United States forbidding State to
impair the obligation of q contract. III,
upon a.proper construction, the Con-
stitution of 1897 docs not operate to
change the nature and provisions
OF complainant's charter into an
irrevocable charter, then the complain.
ants charter lie not protected by the
Federal Constitution and IL revoked
pro tanto by the. charter of the re.
spondent."
The Constitution Of 1897 is silent rs
to the general power OF revocation, but
Mr.. Nields held that the omission of q
reserved power or any similar provision
does not affect the general power of the
Legislature to revoke. He argued that
the charter of the City railway is a
revocable grant and not contract pro-
tecied by the Federal Constitution ;
that it is in ths nature Of q license,
since IL has not the binding force of a
contract.
The veteran attorney held also that
the Constitution of 1887 is prospective
in lis operation by emitting pro-
vision for reserved power of revoca.
tiop by the Legislature it cannot operate
retroactive)y to enlarge q Legislative
grant made before its adoption and
change reyocable charter into an ire
| socable charter, yet such claim is
necessarily made by complainant to
invoke the protection of the Federal
Constitution.
In discussing article 0, section ! Of
| the new Constitution, Mr.. Nields held
that the abuse, misuse or non-use OF
corporate powers would be the ground
| for the loss of corporate existence and
not for the revocation of any particular
| corporate power or privilege. Ii it pro-
vides only for the revocation or for
| fixture of corporate existence of cor.
porations, for an adequate cause, then
there is no provision in this Constitu-
btOh ptoSobtiuR pno i>oHioiobuEo tiohl
lrevokine particular power or franchise
of corporation by granting to the
Peoples Railway Co. franchise moon
sistent with some previous franchises.
Col. Nields held that until the Legis-
lature passes Is general law to limit and
restrict the power OF revocation to the
forfeiture of charters for the abuse,
misuse, or non-use Of corporate powers,
the power Of revocation resei we'd IN the
Legislature by the Constitution of 1881,
remains
g In concluding for the respondent Mr..
Hilles maintained that the General
Incorporation act contained sufficient
authority for the construction of street
railways in cities
Willard Salisbury, for the City Rail
way, dwelt briefly upon his contentious
that the rights of the City Railway
cannot be affected under the new Con.
qtitutinu