Smyrna times., 1906-01-17
LEGAL RIGHT OF COUNCIL TO
SELL ELECTRIC LIGHT PLANT
ABLE OPINION OF FORMER ATTORNEY GEN.
ERAL II. II. WARD SUBMITTED.
Council Would Have Perfect Right to Sell
Without Putting 1t to Vote of the People
and Bond Issue Could be Disposed Of.


Without Putting 1t TO Vote of the People
and Bond Issue Could be Disposed of.
With reference to the legal right of
the Smyrna Town Council to dispose
of the Electric Light Plant to the
Smyrna Kent County and Delaware
Bay Traction Company, U. G. Click,
trustee, Former Attorney General H.
Fl. Ward, one of the counsel for the
said Traction company, submitted the
following opinion which was distrib-
uted to Town Council Friday evening:
Smyrna Kent County and Delaware
Bay Traction Co. ;-Gentlemen:
''You have submitted to me the ques-
ton of whether the Town of Smyrna
has legal authority to sell to a private
purchaser, either individual or cor
poration, the lighting plant erected by
it under the provisions of the Act of
the General Assembly, Chap. 764, Vol.
10, Laws of Delaware, passed April "a,
1898.
1 have carefully examined the char
ter of the town of Smyrna as it was
passed April Z, 1897, being Chap. 537,
Vol. 20, Laws of Delaware, also Chap,
764. Vol. 10, Laws of Delaware, passed
April Gath, 1898, being the Act author
izing the creation of an electric light
ing plant by the Town of Smyrna, and
the act enabling the Town of Smyrna
to refund certain bonds, approved
March 10th, 1905, being Chap. 1S1,
Vol. %.
My examination of the charter dis
closes the fact that the Town Council
has very general authority to pass or
dinances for the benefit of the town,
and special power as to the holding
and disposing of property, in the fol-
lowing words (Sec. Stand may
purchase, take, hold and enjoy lands,
tenements and hereditaments in fee
simple or otherwise, and also goods
and chattels, rights and credits, and
may alien, grant, demise and dispose
of the same as they may deem proper,
and may do all other things which
body polite and corporate may law
fully do to carry out and effect tho OBJ
ject and purposes of this act"
am of the opinion that the provi-
sions of Chapter 76S, Volume 10, Laws
of Delaware, passed April "a, 1898, be-
ing the act under which the Town of
Smyrna was authorized to borrow
money and to create the lighting plant
In questioRhas been, so far as the
5oirdirS provisions are concerned, en-
tirely superseded by the act of March
10th, 1905, under which the present
issue of $34, 900 of bonds has been
made, and that there is under the
terms of the bond and under the act of
March 10th, 1905, no necessary counec-
tion between the bonds and the rights
OF the bondholders, hereunder and
the said electric lighting plant, OF any
other particular property of the town
of Smyrna. The bonds of 1905 were
issued solely and generally upon the
credit of the town, and did not consti-
tute lien upon any particular prop
erty of the town, either for principal
or interest.
l am also of the opinion that the
electric lighting plant property and its
appurtenances is property of the Town
of Smyrna, in the same sense as if such
property was owned by a private cor
poration; that it is owned by the Town
of Smyrna as a business venture of
said town, and is not necessarily con-
nected with any governmental function
of said town or its Tow n Council and
that therefore, even without any spe-
cial authority in the charter, that the
Town Council, in the exercise of a
sound discretion, might dispose of the
same and go out of the business of
electric lighting. In view, however,
of the language of the charter,
in which there appears to be ex.
press authority to alien, grant, demise
and dispose of any property owned by
the town, l am very clear that sale is
fully authorized and could be legally
sustained.
While | am, as / have above out
lined, of the opinion that there ID no
necessary connection between the
bonds issued in 1905 and the electric
lighting plant, yet believe it would
be only fair treatment to the holders
of such bonds that, in case their Sc
eurity should be diminished by sale
of electric lighting plant, the protocols
of such sale should be devoted I'd the
retiring of as many bonds as possible
OF that issue, by applying the purchase
money of the electric lighting plant to
that purpose. 1t would I believe, be
wholly polite to have the ordit ance
which provides for the sale oil the