The Wilmington daily Republican., 1901-09-26

STATE Vs. Mclvor, 3. Gar. s0' feople w.
Supervisors, 81, N. Y, 523; Loe Count!
vs.. tho State, 8o Ark. s76; whom examin
ed do not oontravsns this principle. II
each OF these cases thers seems to be th'
element Of joint and common interest Ia
the subject matter, Independent of mere
contract rights
1t would seem, therefore. that Addicks
was improperly Joined with the company
as relator, aud for that rsasoa the writ
is bad.
1t is further objec ted that the writ is
bad for duplicity.
The relief asked for In the language
above detailed embraces four subjects.
viz:
/. The opening Of the bod of Shipley
street.
80. The opening and excavating Of the
bed Of Monroe street.
8. The opening Of the bed Of Liberty
street.
I. The opening and excas ating Of the
bed Of all the streets Of the said city. Each
subject has peculiar features aud contains
conditions different from the other. They
are four successive and necessary steps Of
one procedure for reltef but each one Is q
distinct and separate cause of action In
Itself, and may not be Joined together Ia
one writ.
The relief asked for cannot be granted
for the four combined. inasmuch as they
are separate aud Inconsistent 1t may not
be granted for part Of them and d1sre.
gard the rest. sThere IL no line Of separa-
tion or warrant Of law for such course.
Again, clause four of the mandatory
part Of the writ Is for q permit for said
company to open and exoavate tho bed Of
streets and highways of the said city,
where, when and as its business may
make IT necessary, for the purpose of iay
ing gas pipes and conductors therein, to
sell aud distribute its gas to the people
and Inhabitants Of the said city under
and subject to such reasonable regulations
as said defendants may prescribe, or the
ordinances Of said city determine.
This clause Is vague, indefinite aud i'm
possible Of enforcement. 1t asks for o
permit for the compan to open all the
streets and highways Of the city in tho
future, where, when and asits business
may make it necessary under conditions
not yet ascsrtaned or as certainable. This
would tie up for tho future the hands of
the Board Of Directors Of the Street aud
Sewer Department Of the city and put the
streets health and convenience OF the en-.
tire city at the mercy of the company. II
1t should be left to Its discretion to deter
mine upon tho necessity. Fit may no.
so decide, then who Is to dstermiu, tAa OK
istenca Of such neooisity or the condt;iols,
time aud place for such work covering the
future
1t Is fundamental requisite to the grant
ing of this relief that there shall be clear
legal right existing In tho relutor, so as to
raise corresponding duty on tho part of
tho respondents; he that may be enforc-
ed. The right must exist at the time Of
the application. The conditions must
be then ascsrtainei and fxod. They may
not be projected into tho future or be
floating and indefinite. depending upon
unknown contingencies. 1t Is for the
court to pass upon this right In all its
phases.
The right must be clearly defined before
this remedy will be applied. The time.
place and necessity for the work. the con
di,ions surrounding 1t. the reason able.
ness of the regulations and ordinances
are all for the consideration of,the court
at the time the writ is ordersd.
Manifestly these requisites are impossi-
BILE when the conditions are all In the
womb OF the future, depending entirely
upon the rights and necessity yet to be de-
veloped.
For these reasons. clearly. this writ
ought to be quashsd.
With this conviction we deem II unnec.
essary to pass upon the other objection
r,ls "a. viz, the want OF proper demand
upon the respondents befsre the writ was
ashoI for. and tho less of the right to re.
lief a. to Monroe and ShipleY streets by
the lashes of the relators.