Evening journal., 1900-10-26


been shown to be an existing corpora
ton of this state and a necessary
party to this suit Therefore the bill
is fatally defective for want of neces-
sary party.
1T is the settled practice Of tbs
court of chancery in such cases not tOl
dismiss the bill but to give the com
plainant leave to amend upon payment
of costs (3 Johnsons Chancery, 427;
4 Del Chancery 337)
Il shall not let the cause stand over.
with liberty to the plaintiffs to amend
their bill by making the Oxy- Hydrogen
Company a party--it must be on the
payment of the costs Of the plea and
subsequent proceedings
Mayor etc. vs.. Addicks. et al. citsd
above)
In accordance with this decision.
complalnants' amended bill was filed
as above stated, and respondents by
filing an answer at a hearing of the
pending motion. for the first time pre-
sented their case to the court upon It's
merits. In the argument then had ali
the questions In dispute between the
parties We're discussed with great vigor
and ability. and sometime after the ar
gument several supplementary briefs
were filed on both sides by leave OF
the court
ALLEGATIONS IN CONfPLAINANTs'
AMENDED BILL
The complainants' amended bill Is
essentially the same as the bill origi-
nally fled except that it recognizes
the Oxy- Hydrogen Company to be an
existing corporation of this state. max
ing 1t a party defendant. and that IL
also inserts the names of the new
members of the Board of Directors of
the Street and Sewer Department as
parties complainant in lieu Of those
wnom they nave succeeded since the
bill was originally filed.
It alleges the incorporation Of the
City Of Wilmington and the power Of
its council to regulate the use OF its
highways prior to July /. A. ID. 1887
And in Section alleges that according
to an act passed April 20, A. ID. 1887
entitled AN Act in relation to the
streets and Sewers OF the City Of VIII
mington," being Chapter 1SS, page S52,
Volume 49, Delaware Laws, ''Ihe May
or and Council of Wilmington was au-
thorized on and after the first day CT
July A. ID. 1887, through the agency of
Board of Directors Of a Street and
Sewer Department by said act created,
to have entire jurisdiction and con-
troll within the limits of said city of
the streets. squares, lanes, roads and
alleys thereof from building line to
building line, and to have the same
rights and powers, and TO be vested
wan the same authority over the said
streets, squares, lanes, roads and al
leys as were at the time of the passage
of the act last aforesaid held and ex-
ercised by the said The Couacil under
the charter. laws. ordinances and reg
ulations pertaining to or i'm any manner
made for the government of the said
city" and that the said Board OF di-
rectOrs of the Street and Sewer De
partment after the first day OF July,
1887, should have control OF all mat
ters relating to said streets, squares,
lanes, roads and alleys and should also
have full power to make adopt, alter
and change ordinances, rules and reg
ulations relating to said streets" etc.
Then after setting forth in Section
3 the composition of said Board OF
Directors at lne time Of its organiza-
ton and also at the time OF filing the
! IL
certain rules and regulations adopted
/ by the said Board Of Directors on the
ninth day of July, A. ID. 1889, relating
10 the opening of beds of streets in
said city" which, as IL alleges, lever
since their adoption have continued
and are now in force, whereby it was,
among other things provided that
before any person should open the bed
] -s.a r.N
for any purpose whatever, such person
should first obtain a permit from said
department in that behalf, and that
application for said permit should be
made in writing in blanks to be fur
nished by said department" A copy
Of the said rules and regulations and
Of the form of written application arc
annexed to and made part of the bill.
1t further alleges that on the thir-
tieth day of March, A. ID. 1891, the said
1 Board of Directors was notified in
writing by counsel of the Oxy-HydrO-
gen Company that it was the intention
Of the company to begin the laying
Of gas pipes in the streets of the city
the next day, and that on the nexi
! day, being the thirty-first day OF
March, 1891, the defendant, John Ed
ward Addicks, as contractor of tho
Oxy-Hydrogen Company, and the said
i Company, without permission Of the
Board, and without first making appli-
cation to the Board so to do, pursuant
to its rules and regulations entered
upon, opened and excavated a certain
street of said city known as Liberty
street.
Finally, after alleging that the re-
spondents had no right or authority
under any act or law of the state to
open and excavate any street Of tbs
5 city without thepermission Of the said
Board of Directors, and that in com.
plainants opinion, the opening and
4, excavating of the streets as threatened
and intended by defendants would b,
inexpedient and in the highest dHgre,
detrimental to the health convenience
and welfare of the public, it states tbs
action Of the board directing the city
solicitor on the said thirty-first day o.
March, 1891, to institute proceeding
to restrain the defendants and that thi
defendants persisted in the unauthor
lied opening and excavating, although
: notified Of such action
q DnT TCEr DOUrrrD on CNNTDr ArNra ~