Appenzellar v. Conrad
| Citation | 99 A. 31,29 Del. 225 |
| Court | United States State Supreme Court of Delaware |
| Decision Date | 11 July 1916 |
| Parties | PAUL APPENZELLAR v. HENRY C. CONRAD, Associate Judge, Resident in Sussex County, THOMAS COLEMAN DU PONT, LEWIS L. DUNHAM, FRANK M. WILLIAMS, SIDNEY H. HENRY and PAUL E. WILSON |
Supreme Court, June Term, 1916.
Rule to show cause why a writ of prohibition should not issue, No. 6 June Term, 1916.
Original petition by Paul Appenzellar for a writ of prohibition against Henry C. Conrad, Associate Judge, resident in Sussex County, and others. On rule to show cause why the writ should not issue. Rule discharged, and petition dismissed.
On the thirty-first day of March, 1911, the Governor of the State of Delaware approved an Act which had theretofore been passed by the General Assembly of the State of Delaware, entitled "An Act to amend an Act entitled, 'An Act providing a general corporation law' (being chapter 273, Volume 21 Laws of Delaware, as amended) by authorizing the organization of boulevard corporations," which said last mentioned Act is chapter 189, Volume 26, Laws of Delaware (article 10 chapter 65, Rev. Code 1915).
On the sixteenth day of October, 1911, Thomas Coleman du-Pont, Lewis L. Dunham, Frank M. Williams, Sidney H. Henry, and Paul E Wilson, under authority of said last mentioned Act, filed in the office of the Secretary of State of the State of Delaware articles of association, whereby was created a corporation by the name of "Coleman du Pont Road, Incorporated," which, by its said articles of association, disclosed its object and purpose.
The corporation organized the same day, and adopted a resolution, for which see Clendaniel v. Conrad, et al., 3 Boyce, 555, 83 A. 1036, Ann. Cas. 1915B, 968, and proceeded to make surveys, etc., as stated in that case, passing through lands now of the said Paul Appenzellar. On the eighteenth day of March, 1916, the said corporation, having previously given the notice prescribed by said Act, presented a petition to the said Associate Judge for the purpose of condemning the right of way for its said boulevard through the lands of the said Appenzellar, wherein the said corporation, inter alia, did aver as shown in the Clendaniel case, and in which said petition the said corporation did likewise aver that it "intends in good faith to complete all of the said several public utilities, for which it is necessary to take said land, as aforesaid, and to operate the same, or cause the same to be completed and operated."
At the time of filing said petition, and subsequent to the filing thereof, the said Appenzellar, through his counsel, challenged the jurisdiction of the said Associate Judge to entertain said petition or take any action thereon, upon the ground that the statute by which said proceeding is authorized, to wit, article 10, chapter 65, Rev. Code 1915, is unconstitutional and void and therefore conferred no jurisdiction upon said Associate Judge in the premises. This objection of the said counsel for said Appenzellar was overruled by the said Associate Judge and the motion of the said Appenzellar's counsel to dismiss the said petition was denied and the said Associate Judge adjourned further action on said petition until the eighth day of April, 1916, for further proceedings thereon according to law.
Subsequently, on the fifth day of April, 1916, the said Appenzellar, through his counsel, filed a petition in this court, duly verified, in substance as follows:
* * * First. That the said Paul Appenzellar is and since, etc., has been seised in his demesne as of fee of that certain tract or parcel of land situated, etc.
Second. That Thomas Coleman du Pont, Lewis L. Dunham, Frank M. Williams, Sidney H. Henry and Paul E. Wilson claim and pretend to be a boulevard corporation of the State of Delaware, by the name of Coleman du Pont Road, Incorporated, by virtue of a paper writing filed in the office of the Secretary of State of the State of Delaware, on, etc., purporting to be 'articles of association of Coleman du Pont Road, Incorporated,' a copy whereof is, etc.
Third. That on, etc., the said, etc., claiming to be such corporation as aforesaid, deposited in the office of the Secretary of State aforesaid a pretended survey of a section or portion of the route of a pretended boulevard claimed to be contemplated by the said alleged corporation, extending through, over and across the tract or parcel of land aforesaid, a copy of which pretended survey is, etc.
Fourth. That the said, etc., assuming to be such corporation as aforesaid, intend to acquire a strip of land extending at a width of two hundred (200) feet throughout its length from a point at or near, etc., and across the aforesaid tract or parcel of land of the said Paul Appenzellar.
That the said, etc., assuming to be such corporation as aforesaid, claim to be vested under the pretended Act of the General Assembly of the State of Delaware, hereinafter referred to, with the power of eminent domain as to all of the strip of land aforesaid.
Fifth. That the said, etc., assuming to be such corporation as aforesaid, in execution of their intention to acquire the strip of land aforesaid, are seeking to condemn a portion of the tract or parcel of land of which Paul Appenzellar is seized as aforesaid, such portion being two hundred (200) feet in width and extending almost the entire length of the said farm.
That to this end and for this purpose, the said, etc., assuming to be such corporation as aforesaid, did on, etc., present a petition to the Honorable Henry C. Conrad, the Associate Judge of the State of Delaware, resident in Sussex County aforesaid, for the appointment of five freeholders to view the tract or parcel of land aforesaid and to assess the damages which the said Paul Appenzellar would sustain by reason of the said pretended boulevard passing through, taking and using the same.
That at the time of the presentation of said petition, the said Paul Appenzellar, by and through his counsel, moved the said Honorable Henry C. Conrad, Associate Judge, as aforesaid, to dismiss the said petition and to refuse to assume jurisdiction to appoint freeholders as prayed for therein, but that the said Associate Judge refused said motion and assumed jurisdiction of the premises, under and by virtue of a pretended Act of the General Assembly of the State of Delaware, hereinafter referred to, and adjourned the cause to, etc., on which day he proposes to appoint freeholders as prayed for. A copy of the said petition and of the motion to dismiss the same and of the order of the said Associate Judge refusing said motion are hereto attached marked, etc.
Sixth. That the filing of the paper writing, purporting to be articles of association of etc., as aforesaid, and the depositing of the pretended survey of a section or portion of the route of the pretended boulevard as aforesaid, and the presenting of the petition for condemnation as aforesaid, were done by the said, etc., under color of a pretended Act of the General Assembly of the State of Delaware entitled "An Act to amend an Act entitled 'An Act providing a general corporation law' (being chapter 273, Volume 21, Laws of Delaware, as amended) by authorizing the organization of boulevard corporations," which the said, etc., allege was passed by the General Assembly of the State of Delaware, at its biennial session held in the year, etc., and allege was approved by the Governor of said State on, etc., and were without any other warrant or authority.
That the Honorable Henry C. Conrad, Associate Judge as aforesaid, has assumed jurisdiction in the matter of the petition for condemnation aforesaid by virtue of the provisions of the said pretended Act of the General Assembly of the State of Delaware and under no other warrant or authority whatever. The said pretended Act of the General Assembly of the State of Delaware, chapter 189, Volume 26, Laws of Delaware, is made a part of this petition.
Seventh. That the said, etc., allege that they, acting as such corporation as aforesaid, intend to use in the construction of a road for vehicular travel, and its accessories, to be deeded to the State of Delaware, as in said pretended Act is provided, a small portion of the aforesaid two hundred (200) feet wide strip of land, extending from a point at or near, etc., and extending through and across said tract or parcel of land of Paul Appenzellar as aforesaid, which small portion is to extend throughout the length of said strip of land at a width of forty feet.
That, protesting that the said small portion of the strip of land is not for, and is not intended to be devoted to, any public use, the said Paul Appenzellar alleges that the said, etc., are seeking to acquire the whole of the residue of said strip of land and to condemn various portions thereof, without having formulated any plan to devote the same to any public use, and without having determined to construct thereon any public utility, but on the contrary are seeking to acquire the aforesaid residue with only a general intention to construct thereon one or more public utilities at some indefinite future period, or to dispose of the said residue through sale of one or more of the alleged franchises of the alleged corporation in case the said Thomas Coleman du Pont and his associates shall in the future become convinced that such construction or such sale will be remunerative to them, otherwise to hold the same without any public utility thereon.
Eighth. That the said, etc., assuming to act as such corporation as aforesaid intend to hold for an indefinite period without devoting the same to any public use, the aforesaid residue of the strip of land aforesaid, which residue extends at a width of one hundred and sixty (160) feet from a point at, etc and includes the...
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