Evening journal., 1914-11-17
CAN TURNPIKE CO.
CHARGE IN CITY?
City Solicitor Doubts Right
TO Exact Tolls on Penn
Sylvania Avenue
CONSENTED TO USE
AS PUBLIC STREET

=
belonging to Saycr Brothers at Mar
kct and Race streets was postponed by
the Street aud Sewer Department. io-
day. pending investigation, but prob
ably will be settled next week.
Mayor Harrison W. Howell annouuc-
ed his approval OF the resolution rcgu-
luting the speed OF cars and other ear
ricrs at crossings.
An elaborate opinion regarding the
right of the Wilmington and kcnnctt
Turnpike Company legally TO charg
toll over Pennsylvania aud Delaware
avenues and Tenth TO Market streets,
was given the board by City solicitor
Daniel q. Hastings lie points ont chat
there are several important questions
involved. the principal one of which he
has not been able TO find single report
cd decision that touches the question.
Mr.. Hastings, in his opinion said;
Dear Sirs:
The question as TO whether The
Wilmington and kennett Turnpike
Company may legally charge toll over
Pennsylvania Avenue. Delaware Ave-
nue. and Tenth street to Market street
in the city Of Wilmington. certainly is
complicated and difficult one. II rs
at the same time very interesting and
perhaps very important
The Act of the General Assembly
creating the Turnpike Company was
approved January p, 1911, being
Chapter 1856. Volume 4, Laws of Della
ware. by said Act the company was
given authority to build a road from
the borough Of Wilmington. to the line
between this State and Pennsylvania,
a. or near the house now occupied by
Charles Twaddle."
4 The limits of the borough Of Will
mingtOn." at that time, were, as | un-
derstand IL. Adams street at Della
ware Avenue.
On June 3. 1911. the city undertook
| to give 10 the said company the same
authority within the city limits TO
/ Market street that the Legislature had
given It without the city limits.
My very clear impression at first
was that this last mentioned ordi-
nance gave to the company no author
! ity to build a road and charge toll
| within the city limits. for the reason
/ that in the Act Of the Legislature
above referred to- the company was
! limited in its authority 20 build road
and charge from the borough of Will
mington,' which l did not believe in
cluded a point within the City Limits;
and the company not having the
authority from the Legislature
could not get it by an Ordi-
nance such as the one approved
June 3, 1871. ! am yet strongly ot tm
opinion that this j. correct. though y
an examination of the subject tom
three reported decisions, two holdn
that such language would include
point within the city limits and 1u
holding that the language must be con
strued strictly and would only permi
the road 20 bc built 20 the city line.
This part Of the question only Affects
il will be- observed, that portion of th
road from Adams street and Delaware
avenue te Market street.
Before there was any other Legislation
upon the subject the city limits were
, extended 10 Union street and Pcnnsyl
vaniG avenue la the year 1865 there
was undoubtedly o portion of the com.
pany's road within the city limits
namely. from Union street 10 Adams
street About this much of II there
could, at that time, be no question.
by an Act Of the General Assembly
approved March 10, 1860. being Chapter
547. Volume -, Laws OF Delaware, tine
, Legislature undertook e. vacate that
portion of the Wilmington and kennett
turnpike lying within the city limits
providing at the same time that Tn,
same shoul, not be closed until the city
had opened the necessary streets rol
the convenience Of the public.
have made a very diligent effort O.
ascertain Just what effect this act had
ON the rights of the company, and ir
this connection ! would state that / an
very certain that the franchise grantee
10 The company giving II the right 10
build a road and collect tolls from per
SONS using il. constituted contract be
tween the State and the company whic.
could not lee impaired by any act OF Tin,
Legislature. am also quite CERTAIN
that the vacating Of this road, built by
/ this company. was m effort to tak,
from it certain vested rights, and is
| therefore void that is, void so far a;
it undertakes 20 affect that portion of
! the road between Union and Adams
streets. II may be that il had the ef-
feet Of vacating that portion of the
| road between Adams and Market
: streets. for I am inclined TO the
| opinion that said portion of the road
was built without legislative author
{ ity, as I have above suggested. An
act OF the Legislature might very
well, ] assume under the cOnstitu-
tion in existence in 1865. vacate a
road unlawfully built
I shall not, therefore. further con-
slider the act Of 1865. but shall as
sumo that so far as # affects this
question II Is void
So far as 7 can ascertain there was
no further legislation upon the sub
iect. but there was an agreement en-
tered into between the city and the
company in the year of 1874, whereby
the city was given permission 10 To-
cate Pennsylvania avenue as far as
necessary On the bed of the COM
pany's road. the city agreeing to
keep the same In repair within the
Z city limits, and the company TO take
toll to Market street as was its GUS
tom. In the year 1910. a similar agree
. ment was entered into permitting the
locating OF Pennsylvania avenue as
far west as Greenhill avenue
The important question that occurs
to ME in this connection Is this: Can
corporation. given a franchise by
the State for the purpose of con-
structing a road, 10 be used by the
public upon the payment Of certain
specified toll, with conditions re-
quiring II to keep the same in good
order and repair, surrender teh entire
( possession and control of a portion of
/ IL to a municipal corporation on con-