The Wilmington daily Republican., 1901-09-26
ADDLCKS CANNOT
Use STREETS

mains In the streets Of this city. for 10
Superior Court yesterday afternoon. the
alternative writ of mandamus was quash
cd in the case of the Oxy. Hydrogen Gas
Company and j. Edward Addicks against
William Simmons, Ayres s. Webster and
James ID. Carter constituting the board
of directors Of the Stree: and Sewer De.
pertinent Of Wilmington. The litigation
was to try to compel the street and sewer
directors to grant to Mr.. Addicks aud the
Oxy-Hydrogen Company permission In
open city streets. that gas pipes and mains
might be laid.
by quashing the wilt, the proceedings
terminated. and Mr.. Addicks, in the tlght
Is practically In the came p csition as he
was when Chancellor Nicholson determin
el that the proper proceedings for him
to gain permission to open tho streets was
through mandamus proceedings In tho
Superior Court.
William s. Hiiles and A. W. .Spruance
represented the street and sewer directors
aud Herbert H. Ward and q. Berkeley
Taylor Of Philadelphia were counsel for
MIR. Addioks In the case. The motion to
dismiss the writ was made BY Mr.. Hilles
with Chief Justics Lore and Judge Boycc
on the bench. Judge Spruance retiring,
as he had been engaged as counsel whom
the cass was brought originally.
The court In announcing Its decision
supports tho reasons set forth by Mr..
Hilles and Mr., Spruance. why. the writ
should be quashed. 1t holds THAT Mr.
Addicks is simply In the role of a con-
tractor In the case. and bis right to be on
forced only against the Oxy-Hydrogen
Company. There are also four steps Of
procedure for relict prayed for. but each
one is q dietinct and seperats cause for
actions in itself. The court also holds
that the clause providing for the excavat.
ing and opening Of the beds Of all streets
is vogue Inconsistent and Impossible Of
enforcement.
The fight on behalf OF Mr.. Addicks is to
be renewed, however, as Mr.. Ward said
yesterday afternoon new writ will bs
fled as soon as it can be prepared, and
argument again will bo made. 1t covers
a period Of ten years already.
The decision Of tho court In the caso Is
as follows:
This Is motion to quash the alterna.
tive wri Of mandamus Issued in this case.
The twenty grounds 80 out in support
OF the motion may be Suna ed as follows;
l. That Is no proper demand has ever
been IN ade by the relator for the perform
ance Of the thing sought to be enforced by
the writ
?. Misjoinder o; partie: as relators.
8. That the writ is bad for duplicity.
I. That the writ Is in consistent, un.
certain and mandatory part thereof is not
single
That the relief sought has been lost by
laches Of the rslators as to Monroe and
Shipley streets.\
The relief asked for and expressed In
the mandatory part Of the writ is to com
pei The respondents, who constitute tho
Board of Directors of the Street and Sewer
Depar ment Of the City of Wilmington,
to grant the Oxy Hydrogen Company, one
of the relator., u permit to do the follow
ing things:
Ito open the bed OF Shipley street in
said city Of " ilmington for the purpose
of laying gas pipes therein.
2.-To open aud excnvste the bed Of
Monroe street in said city Of Wilmington
'for the purpose Of laying gas pipes there
In
3.-To open the bed Of Liberty street in
said city for the purpose OF laying gas
pipes and mains therein.
4.-To open and excavate the bod of,
streets and highways Of the said city
where. when and as In business may
make 1t necessary. for the purpose Of lay
ing pipes and conductors therein. to sell
q nd distribute lie gas to the public and In
habitants OF said city. under and subject
to such reasonable regulations as said do
fendant may prescribe, or the ordinances
of SAID city may determine
The right of relief is founded upon the
provisions Of the charter Of the Oxy Hy-
drogen Company passed OF Dover, April3,
1871 l, which ts as follows;
The said corporation Is hereby empow
erod to lay pipJs and conductors, with all
appurlsnahccs hereto, and to erect the
necessary posts and lights in any and all
the roads, streets, highways and public
grounds In tho s.ate of Delaware And
to do all things necessary for the purpose
Of lighting the same, and oil dwellings.
stores, mines, tunnels and other places,
provided that public travel shall not bs
unreasonable and unnecessarily obstruct
ed thereby. And said corporation shall
put such streets, roads, highways and
public grounds In as good condition %
the same were before laying sati pipes
and erecting said posts
II will be observed by the charter that
the right to open the streets, etc.. Is con
ferred on the company only.
1t Is objected that the.j joiuder Of J. Ed.
ward Addicks with the company US co..
relator is q nisjoinder Of parties and fatal
TO tho writ.
Tho relation Of Addioks to the company
is that under da'e Of August 3 1890 ho
made an offer to the company to build for
1t complete gas works In said city of
Wilmington for the sum OF $500. 900 In the
bonds and s5OO0OO In the stock Of the
company at par; the company
to guarantee 10 him free and unrestricted
access to the streets for the purpose OF lay
Ing pipes This offer was accepted by the
company. The right Of Addicks. therefore
on the face OF the writ seems to be that
Of con tractor upon contract made with
the company alone. He Is like any other
contractor ar employe. His right IL that
OF contract with the company and to be
enforcad only avainat tha comnanY, To