Evening journal., 1913-06-18
City Solicitor Defines Powers of
Utilities Board; Says Law is Valid

paid by any of said departments for
any legal services TO any person who
shall have been employed, without the
approval Of said city solicitor" Under
this last provision the various depart
ments have in past years employed
counsel either to assist the city so
licitor IN some important case, or
more frequently In a case where there
was some difference between the de-
partments that could not be settled
out of court This same section 4
would be applicable to your depart
ment, but the question you ask me isl
somewhat different The only disquali-
fication YOU place on the city solicitor
In your question is when he "has any
financial or professional relation with
any public utility under the boards
iurisdiction.' This act gives the board
Jurisdiction over all public utilities,
but unless there was some occasion
for the board proceeding against a
public utility In which the city solicit
tor had some financial interest or pro-
fessional relation there would seem to-
be no excuse for employing additional
counsel After all, the propriety of a
city solicitor acting as solicitor Tor
your board and at the same time coun-
sci for a public utility over which you
have jurisdiction is a matter that must
be left largely to the judgment and
conscience of the city solicitor himself.
He knows when the interest Of the two
conflict. When they do conflict. he
should resign as city solicitor or as
counsel for the utility, for no lawyer
can successfully represent two oppos-
ing clients
/ do not know just why this ques-
ton is asked of me at this time. / do
not represent any public utility over
which your board has jurisdiction; on
the contrary ] have declined such en-
ployment on the sole ground that /
was city solicitor and might be called
on to take some action against them
as solicitor for your board. Neither
have l any financial interest in any
public utility
A. "Does paragraph a. section 4,
give the board the power to require
every public utility to pave and keep
IN repair all streets upon which such
public utility operates, as is required
by the terms of their charters or fran
chises?"
The paragraph referred TO, and that
which Immediately precedes it, reads
as follows!
"The said board shall have general
supervision over ali public utilities as
herein defined, within the limits of the
city of Wilmington, and shall have
power, after hearing upon notice by
order in writing
(a) To require every such public
utility as herein defined to comply
..ttl, A., uxfa 90 fhfo Cfafa relating
thereto or with any legally adopted
ordinance or regulation of the said
city of Wilmington or with any OF the
terms OF the franchise under which
such public utility operates
The language above quoted would
certainly indicate that the board had
authority to compel the public utility
to comply with it's franchise Prior to
the passage of the act / am now con-
sidering the Street and Sewer Depart
ment had exclusive jurisdiction over
the streets and the public utilities
operating therein; at least TO the ex-
tent OF seeing that they complied with
the franchise given. IL would seem
that now both the Street and Sewer
Department and your board had con-
lourrent jurisdiction in this matter, At
any rate, there is apparent Jurisdiction
for your board and you cannot know
with certainty until you have attempt
| cd to exercise such jurisdiction. The
fact that the board was criticized by
one court in IT'S procedure in the only
important case yet before II. does not
mean that nothing can be done under
the act. II will be difficult to do any
thing under the act that viii not be
subject TO criticiem by both counsel
and judges who do not happen TO
agree with the boards conclusion. II
is the privilege of higher tribunals to
criticise the acts of board like yours
and fair criticism no one should object
to Unfair criticism no one can usu-
ally afford to indulge in.
8. Does paragraph "b," section a,
give the board the power to require
the railway companies to furnish more
cars If the board should find the SER
vice inadequate, or to equip any cars
with any tenders, wheel guards or any
safety or testing device, or TO ventilate
and keep such cars i'm a sanitary con-
diton as the board may deem neces-
sary?"
Said paragraph "b" gives the board
power, after hearing upon notice, by
order I'm writing: "To require every
such public utility as herein defined
TO furnish safe and adequate service. ."
Il will be seen that the general
power TO compel the public utility 10
furnish safe and adequate service is
given. I cannot undertake to answer
this question specifically. Il covers so
many things that ! think the particu-
lar thing the board has in mind should
be stated TO me before an opinion Is
required.
IL might be suggested here. how
ever, that in determining what Is safe
and adequate does not depend solely
upon what the board might think nee
essary as is intimated by your Ques.
tion; but what is Just and reasonable
under all the circumstances as they
appear upon the hearing.
G. Has the board the power to say
J what kind of cars can be operated and
? whether such cars shall stop on the
near side OF on the far side of the
D cross streetsY
b I should say as a general PROPOSE
e ton that this could not be done Tn,
5 nearest authority In the act for sucl
t control would be the "safe and ade
;. Quate service clause above referred
!, to. and ] can hardly conceive of a con
r. dition where the board could justifl
r and reasonably require such things il
e order that safe and adequate service
J. might be given the public.
II T. HAS the board the power TO re
,, quire the public utilities to place thei
h wires underground"
t- ! think not Certainly not unless
.p the franchise granted rerorv,d Ant