Wilmington City Ry. Co. v. Taylor

• Citation: 198 F. 159
• Decision Date: 05 March 1912
• Docket Number: 310.
• Parties: WILMINGTON CITY RY. CO. et al. v. TAYLOR et al., Board of Public Utility Com'rs of City of Wilmington.
• Court: U.S. District Court — District of Delaware

198 F. 159

WILMINGTON CITY RY. CO. et al. v. TAYLOR et al., Board of Public Utility Com'rs of City of Wilmington.

No. 310.

United States District Court, D. Delaware.

March 5, 1912

[Copyrighted Material Omitted] [Copyrighted Material Omitted]

Herbert H. Ward and John F. Neary, both of Wilmington, Del., for complainants.

Daniel O. Hastings, City Sol., of Wilmington, Del., for respondents.

BRADFORD District Judge.

In this case the Wilmington City Railway Company, hereinafter called the city railway company, the Front and Union Street Railway Company, hereinafter called the Front Street company Wilmington and Edgemoor Electric Railway Company, hereinafter called the Edgemoor company, and Wilmington and Philadelphia Traction Company, hereinafter called the traction company, have applied for a preliminary injunction to restrain until the determination of the case or the further order of the court Henry M. Taylor, Samuel G. Cleaver, Joseph Jackson Pierce, William H. Vance and C. Frederick Bacher as members of and constituting the Board of Public Utility Commissioners for the City of Wilmington, hereinafter called the utility board, its servants, etc., from enforcing or attempting to enforce by suit or otherwise a certain order made by that board September 1, 1911, directing the traction company to renew, beginning with the starting of its cars September 20, 1911, the sale of six tickets for twenty-five cents, commonly known as strip tickets, within the city of Wilmington, which tickets when sold should entitle the holders thereof respectively to the same rights and privileges as to the fare or ride and transfer on the cars of that company in the city of Wilmington as were given to its passengers immediately prior to August 13, 1911; and further directing that the traction company in default of compliance with the above order should be subject to and should pay a penalty of one hundred dollars per day for the violation thereof. The utility board was created by act of assembly March 29, 1911, chapter 206, vol. 26, Del. Laws. Section 3 provides, among other things, that the board 'shall have power to make all needful rules and regulations for its government and proceedings' and 'may engage the services of experts to assist them in arriving at the proper determination of any question that may be brought before them for determination.'

'Section 4. The said Board shall have supervision over all public utilities operating within the limits of the said City of Wilmington; and the term 'Public Utilities' as used in this act is herein defined to include all street railway, express, traction, gas, electric light, heat and power, water, telephone and telegraph corporations, associations or joint stock companies operating within the limits of the City of Wilmington for public use. The said Board shall have general supervision over all 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 with the laws of this State 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.

'b. To require every such public utility as herein defined to furnish safe and adequate service.

'c. To require every such public utility as herein defined to keep its books, records and documents so as to afford an intelligent understanding of its business.

'd. To direct any such public utility as herein defined, found to be granting unjust, unfair or unreasonable discriminations, to immediately cease from so doing.

'e. To investigate any accident happening in the said City of Wilmington in connection with any such public utility as herein defined.

'f. To hear and examine complaints concerning rates charged by any such public utility as herein defined, and to make such recommendations and orders as it may deem proper concerning such rates.

'g. To make such recommendations as it may see fit to concerning such public utility as herein defined, and to see that all laws of the State and all lawful ordinances of the City of Wilmington are complied with by such public utility, and it shall cause action to be brought against any such public utility violating any such law or ordinances through the Attorney General of the State of Delaware or the City Solicitor of the City of Wilmington.'

Section 5 provides, among other things, that the board 'shall have the power to compel the attendance of witnesses and the production of books, papers, accounts and documents, to swear witnesses and to issue subpoenas. ' Section 6 is as follows:

'Section 6. All orders made by said Board pursuant to the power and authority given by this act, shall be served on the public utility to be affected thereby, within a reasonable time after such order is made by the delivery of a certified copy thereof to the person to be affected thereby, or to any officer or agent of any corporation, association or joint stock company upon whom a summons may be served in accordance with the provisions of the laws of this State. Such order or orders shall take effect within a reasonable time, such time to be fixed in such order. Within thirty days from the date of service of any such order or orders, any party to the proceedings, person or company affected may appeal from such order or orders to the Superior Court of the State of Delaware, by filing a notice of appeal, setting forth the order appealed from, with the Prothonotary of the said Court, which said Court is hereby given jurisdiction to hear and determine such appeal on the merits of the matters forming the basis of the order. The taking of an appeal shall not stay the operation of the order appealed from but a stay may be granted by the Court in its discretion, either with or without terms and conditions. The form of procedure, except as herein outlined, shall be prescribed by the said Court by rule. In default of compliance with the said order when the same shall have become operative, said person, corporation, association or joint stock company, upon whom said order shall have been made, shall be subject to a penalty not exceeding one hundred dollars per day for the violation thereof, to be recovered in the said Superior Court in an action of debt at the suit of the Board.'

Section 9 provides that the city solicitor of Wilmington 'shall be the legal adviser for the said Board.'

The city railway company was chartered February 4, 1864, chapter 406, vol. 12, Del. Laws, with power to 'locate, construct, operate and maintain a city railway for the carriage of passengers and freight for compensation within the city of Wilmington, with the privilege also of extending such railway to any place or places outside of the city, not more than six miles distant from the city limits. ' By an amendment to its charter, passed March 26, 1891, chapter 187, vol. 19, Del. Laws, it was provided that the company 'shall not at any time be allowed to charge a greater amount than five cents for any one fare or ticket or ride in their cars through the said city. ' The company accepted July 23, 1906, the provisions of the constitution of Delaware of 1897. Incor. Rec. L, vol. 2, p. 534. In June, 1910, the charter of the company was further amended, Incor. Rec. P, vol. 3, p. 467, providing, among other things:

'The said corporation shall further have power to lease or demise or otherwise dispose of by any contract partaking of the nature of a lease or demise, for any term not exceeding one thousand years, its real estate and railways as the same are now located and constructed, or as the same may be hereafter located and constructed; in pursuance of any and every lawful authority now existing, or which may hereafter exist, together with all the branches, extensions, sidings, turnouts, tracks, rights of way, fixtures, equipment, choses in action, wires, rolling stock, real and personal property of every nature and description, easements, licenses, public and private, liberties, appurtenances, tenements, hereditaments, of whatever kind or description, and wherever situate, now held, owned, used or controlled by said company, and which at any time hereafter or during the term of such lease may be by it held, owned, used or acquired, incident to or connected with the maintenance, operation, construction or extension of its said railways and appurtenances, and also all the rights, powers, privileges and franchises which now or at any time hereafter or during the term of such lease may be lawfully possessed, exercised or enjoyed in or about the use, operation, management, maintenance, renewal, extension, improvement, or ownership of its railways, property and appurtenances aforesaid.'

The Front Street company was chartered February 20, 1877, chapter 432, vol. 15, Del. Laws, with power to 'locate construct, operate and maintain a city railway, for the carriage of passengers and freight for compensation, within the city of Wilmington. ' An amendment passed April 8, 1891, chapter 188, vol. 19, Del. Laws, conferred upon the company 'the privilege also of extending such railway to any place or places outside of said city, to the distance of not more than six miles beyond the city limits' and provided that the company 'shall not at any time be allowed to charge a greater amount than five cents for any one fare or ticket or ride in their cars through the said city. ' June 1, 1910, the company accepted the provisions of the existing constitution. Incor. Rec. K, vol. 3, p. 597. In June, 1910, the charter of the company was further amended, Incor. Rec. Q, vol. 3, p. 250,...