Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1900-10-04
CITY RAILWAY co. LOSES
Chancellor Nicholson Rendered an In
purtant Decision Thursday.
RIGHT TO USE OF SIXTH STREET
Is Practically Given to Peoples
Railway Co.
CITY CO.'S RIGHTS NOT EXCLUSIVE

right to construct line in the city OF
Wilmington. Such was the important
effect OF q decision handed down In the
Court Of Chanoery Thursday morning
by Chancellor John r. Nicholson, the
case at bar being that of the Whining
ton City Railway Co. vs.. the Peoples
Railway Co. The City Railway had
sought by injunction proceedings TO
prevent the Peoples 90. from going
ahead under its permit from the street |
and Sewer Department to build troll
ley line across town from Greennlll ave-
nue., on the west side, to the fhiiadei-
phia, Wilmington & baltimore haii,
road, right Of way on the east SIDE hy
way Of Sixth street. The Peoples Co.
came into existence after the failure OF
the Wilmington & Brandywine Springs
Railway Co. in its efforts to build
line into the city, the Chancellor hav-
ing decided that it had lost it's right to
come IN because it had not met the
requirements of its charter. The great
difference between the two corporations
was that the Brandywine Springs Go.
was created by special act OF the
Legislature, whereas the Peoples 20.
is formed under the General lnooipo
alton act.
In the former case, the Chancellor
decided that the Legislature had the
right to revoke the charter of the Will
mipgton City Railway Go. and it had
revoked it to the extent OF granting the
Brandywine Springs Go. the right 10
build q line 10 Wilmington, tut as the
Brandywine Springs Co. had failed TO
meet the requirements OF Its charter'
the revocation was void. 1t renamed,
therefore, to consider the new relation
caused by the formation OF the Peoples
Go. under the General Incorporation
act and the gist of the decision was
that the Legislature still had the
mower of revocation of the exclusive
right claimed by the City Railway,
and that the Peoples Co. had the
right under its charter to build its line
here. h.
The decision occupied about So min
utes IN reading.
Chief Justice Charles B. Lore occu.
pied seat on the bench; Judges James
Pennewill and W. II. Boyce were
within the bar.
The bill Of complaint in the case was
fled May 18th, the prayer being thai
the Peoples Co. be restrained from
building and operating road withir
the city and that preliminary iniunc
ton be issued. A rule was issued ane
in June the motion for preliminary
injunction was argued. Briefs wer'
filed, the last one ON July 9th.
The City Railway alleges in its bill
that under its act of incorporation
passed February 4th, 1864, it was
granted the exclusive right to built
and operate a city railway within tn
,ity limits of Wilmington, and that tn
alleged charter OF the Peoples Railwa
Go, is Illegal and void as is also tn
pretended consent of the Street an
Sewer Department, and that by theT
The obligations Of the contract betwee
the City Railway and the State of De
aware would be impaired. The People
Railway Co. on the other hand denie
the exclusive right and alleges that
is valid corporation, that it has
valid consent from the Street and Sewt
Department and that in no way are til
obligations of the contract mentione
impaired. l
The Chancellor dwelt for time upo
his decision in the case of the Wi
mington City Railway Co. vs.. the Wi
mington & Brandywine Springs Raj
way Co., in which he decided, frs
that although the charter of the Ci
Railway did give it the exclusive rig
claimed yet the reserve power of revoc
GlOn, ny bub Lug Ouuhdiutd
the Constitution Of 1881 became pa
second, that the reserve power of rev
cation by the Legislature means {
power to revoke at the pleasure of Il
Legislature, any or all the right
privileges or franchises granted to
corporation; third, that the Brano
wine Springs road had the right unG
certain conditions to build its railw
in Wilmington, but having failed
meet some OF the conditions had :,
,feited the right. The case arose unt
"a special act and its supplemel
Rranted while the Constitution of II
was in force. The present cause ari
under the General Incorporation
passed in accordance with the p
visions of the Constitution Of 1897.
The Peoples 90. seeks to bull,
trolley line from the intersection
Lancaster avenue and Greenhill aVen
thence along Greenhill avenue a
other streets (princially Sixth to
road Co. The questions raised are
First, Does the reserved power
revocation by the Legislature
charters granted under the Consri
tion of 1881 exist under the pres
Constitution
Second, Has the General Incorpc
tion law, passed In accordance with
provisions Of the new Constitut
revoked the exclusive right of the Y
mington City Railway Go. to censtr
and operate city railroad in the
of Wilmington, by authorizing the
corporation Of railways possess
rights necessarily inconsistent tn
within
After an exhaustive consideration
fundamental principles of const
tional law and consideration of
sections OF the Constitution ipvol,
the Chancellor said; 81 am irresi
bly, brought to the conclusion that
reserved power of revocation by
Legislature of the charter of the
imington City Railway 90, which as
been seen, included the power to
woke Its exclusive features alone, !
ing its other franchise intact, g,
under the present Constitution, tn;
when exeIcised BY general law, wi
is claimed BY respondents couns,
have been done by the General Ii
poration Lay and the organiza
under it Of the Peoples Railway {
On the second question, the @
cellor examined sections involve
the Incorporation act in detail and
into consideration the ruling Of
New Jersey courts on the provit
concerning railroads. The act con-
no specific provisions for street
ways. Section liz gives authori
build railways commencing al
49, A.. s.A-