Evening journal., 1900-10-26
U THE EVENING JOURNAL, FRIDAY OCTOBER 26. 1900

section II. article 2. OF the Constitu-
tiOn of 1881, which provides that no
act of incorporation, except for the
renewal OF existing corporations shall
be hereafter enacted without the con-
by two-thirds of each branch
of the Legislature should be CON
strued TO apply TO acts of revocation
MS VOL as to acts of Incorporation.
Third. Whether the limitation in the
same section upon the power of the
Legislature In regard to the enactment
Of general incorporation acts should be
construed by analogy to apply also to
any general act of revocation passed
prior to the amended Constitution OF
1897
The remaining portions Of the argu-
mcnts on both sides are devoted to an
able and exhaustive examination of
the principles and authorities, upon
the extent of the police power of the
state, applicable to the facts in this
case, and also to the discussion of the
lloged existence in this case of vested
property rights which would be in
Naded If the contentious of complain
ants counsel should be sustained.
But 1t is apparent from the analysis
that ! have made OF the pleadings and
OF the points raised, which | have
taken the pains to make exhaustive.
Q3J that every allegation and every
argument is intended to sustain or
combat a single proposition OF the
and that is that the
Street and Sewer Department OF the
city of Wilmington Possesses the right
either to grant or refuse at its dlscre-
tion, permission TO the Oxy-Hydrogen
Company to enter upon ana excayate
the city streets"
POWER TO REGULATE USE OF
STREETS.
l have already quoted at length the
repeated admissions made in the de-
fendants answer that the Street and
sewer Department Of the city Of Will
mingtOn does possess the power to
regulate the use Of the city streets I'm
the manner set forth, a necessary part
of those regulations being that a per-
init must be obtained from the board
OF directors OF the department before
any individual or corporation can
enter upon and excavate them. These
admissions are only the recognition Of
a principle too well established and
explicitly laid down to admit OF dis
cussion; and defendants only dispute
the right of the said board OF directors
TO refuse to grant a permit to the
OXy- Hydrogen Company or its agents
on the facts disclosed by the record
and the argument turns, as / have
Shown, upon the construction and
.constitutionality Of the statutes and
ordinances cited.
Now then, the question arises
whether il is within the jurisdiction
OF this court. upon an application of
this kind, to ascertain the existence or
non existence of an absolute legal
right in the defendants to the permit
of said Board of Directors of the Street
and Sewer Department, upon their
compliance with the rules and reg1l-
latiOns prescribed, or whether it is the
duty OF this court to confne itself "a
preserving the status quo. by granting
a preliminary injunction restraining
the defendants from enterting upon
land eXcavating the streets OF the city
pending the adjudication of this ques-
ton by the Superior Court, upon an
application by the defendants for a
writ of mandamus to compel the Board
iof Directors of the Street and Sewer
Department to grant a permit.
The public Importance of this liti-
cation, as well as the high standing
at the bar of the counsel engaged IN
/ It. and the remarkable industry and
liability displayed by them in the num-
erous arguments had before me in It.
different stages. render it desirabl,
that / should state at length the rea-
sons for the conclusions to which
have been led, which. however, OBJ
vious they now appear to me to be
did not occur to my mind at the time
/ of the argument of the pending mo-
tiOn nor until after a prolonged con.
sideration of the whole subject in tn,
| light of the authorities.
The case of Hartman VS.. Jones, ]
Craige and Phillips, 300, decided by
Lord Chancellor Cottenham, contain.
such compact statement of the prin,
ciples applicable to this question o.
jurisdiction, that l will cite it a
length.
The suit was instituted by the di
rectors of the Sun Fire Oniice agains
certain persons who represented tn
commissions Of sewers. and who wer,
proceeding, under the powers of Ger
tain acts Of parliament. TO appropriate
for the purposes Of the acts. a piec
OF land upon which the Sun Office car
ried ON its business, etc. The vice chan
cellor had granted an injunction to re
strain the defendants and the com
missiCners of sewers from taking an,
step towards divesting the said lam
against the consent of the Sun Fir
Insurance Company. and from modest
ing the said company or the plaintiff
in their peaceable and quiet possession
of the land until the further order O
the chancellor.
, The defendants moved by way of ap
peal before Lord Chancellor Gotten
ham that the order might be dis
charged
I The argument turned entirely upo
the construction and effect of the act
! OF parliament under which the con
v missioners Of sewers derived thei
/ powers On the conclusion of IL IN