Delaware gazette and state journal. (Wilmington, Del.) 1883-1902, 1901-10-03
oxy-HYDRoGfN GO. KNOCKED OUT.

warn hdulchS WbEb thfutu aoWu ny tub
Superior Court yesterday week IN
their effort TO have the Street and
Sewer Department compelled to grant
streets. Thus after l0-years' fight the
gas COMPANY ID still prevented from com
ing in. The present proceeding was for
William Simmons, Ayfes s. Webster
ard James ID. Carter az Street and
Sewer Directors. Herbert II. Ward and
@. Berkeley Taylor represented the gus
company and Addicks, and William S.
Hilles and Arthur W. Spruance, the
Street and Sewer Directors Messrs.
Hilles and Spruance moved some time
ago for the dislnissalo of the writ. Chief
Justice Lore and Judge Boyce consti-
tuied the court, Judge Spruance not
sitting as he had once been counsel In
the case. 10
The fight is to be renewed, however,
by the attorneys for Addicks and the
gas company, who are to tile new ap-
plication. a
The opinion of the court as announced
yesterday week, is as follows:
This is motion to quash the alterna-
tive writ OF mandamus Issued IN this
case.
The twenty grounds set out in sup
port of the motion may be summarized
as follows: .
]. That no proper demand has ever
been made by the relator for the per-
formance OF the thing sought to be en-
forced by the writ
2. Misjoinder OF parties as REALTORS.
3. That the writ is bad for duplioity.
a. That the writ itself is inconsistent,
uncertain and the mandatory part
thereof is not single. Tt
5. That the relief sought has been
lost by laches OF the REALTORS as to
Monroe and Shipley streets.
The relief asked for and expressed In
the mandatory part of the writ is to
compel the respondents, who constitute
the Board of Directors of the Street
and Sewer Department OF the city of
Wilmington 10 grant the Oxy- II ydrogen
Co.. one OF the REALTORS, a permit to do
the following things:
!. To OPEN the bed OF Shipley street
in said city OF Wilmington "for the
puprose of laying gas pipes therein. y
=. 10 open and excavate the bed of
Monroe street in said oily "for the
purpose Of laying gas pipes therein. "
3. 10 open the he'd OF Liberty street
in said city ''for the purpose of laying
gas, pipes and mains therein.''
4. To oren aud exoavate the bed Of
streets and highways nf the said city,
where, when and as its business may
make it necessary, for the purpose of
laying pipes Gnd conductors therein,
to sell and distribute its gas to the
public and Inhabitants of said city,
under and subject to such reasonable
regulations as said defendant may pre-
scribe. or the ordinances of said city
may determine.
The right to relief is founded upon
the provisions Of the charter of the
Oxy HydTo2on Co. pnsspd at Dover,
April Sd, 1871, which is as follows:
''Thst the said corporation is hereby
empowered to lay pipes and cond uctors,
with all appurtenanoes thereto, and to
erect the necessary POSTS and lights in
any and all the roads, streets, highways
and public grounds in the State Of
Delaware. And to do all things neces-
sary for the purpose Of lighting the
same, and all dwellings. stores. mines,
tunnels aud other places, provided that
public travel shall not be unEeasonsb oily
aud unnecessarily obstructed thereby
And said corporation shall put such
streets. roads, highways and public
grounds in as good condition as the
same were before laying said pipes and
erecting said posts.
1t will be observed by the charter
that the right to open streets, &C., is
conferred ON the company only.
1t Is objected that the jolnder of j.
Edward Addicks with the company as
-relator is misioinder of parties and
fatal to the writ.
The relation Of Addicks to the com
pany is, that under date of August
9th, 1890, he made an offer to the com
| pany to build for 1t complete gas works
in said city OF Wilmington, for the
sum of $500, 600 in the bonds and
$500, coo in the stock of the company at
par; the company to guarantee TO him
free and unrestricted access to the
streets for the purpose of laying pipes.
This offer was accepted by the com
pany. The right of Addicks, therefore,
on the face of the writ seems to be that
OF a contractor, upon contract made
with the company alone. He is like
any other contractor or employe. His
right is that of contract with the com
pany, and to be enforced only against
the company. To this contract the re-.
spondents are in nowise parties nor in
any manner liable Hereunder.
We are at loss to see in what way
he has acquired rights against the
respondents, or what duty they owe to
him that will entitle him as a CO.
relator to this remedy.
1t is an elementary principle that the
interests Of oo-relutors In mandam us
proceedings must be joint and common
in the subject matter.
The cases cited by counsel for the
REALTORS, VIZ, Dist. VS.. Rhodes, IS
Iowa, $40; State VS.. MoIvor, 9 S. Car,
%; People VI. Supervisors. So, N. Y,
523; Loe County VS., the State, 36,
Ark, 276; when examined do not con.
travene this principle. In each of these
cases there seems to be the element oil
Joint and common interest in the sub.
ject matter, independent of mere con.
tract rights.
1t would seem, therefore, that Ad
dicks was improperly Joined with the
company as a relator, and for thai
reason the writ is bad.
1t Is further objected that the writ II
bad for duplicity.
The relief asked for In the Language
above detailed embraces four subiecrs,
viz:
l. The opening of the bed of Shipley
street.
2. The opening and exoayating of thu
bed Of Monroe street.
| 8. The opening of the bed of Libert,
street.
| 4. The opening and exosvating OF tn,
bed of all the streets of the said city
Each subject has peculiar features and
contains conditions different from tn,
| other They are four auccessipe am