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 |
[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.
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:
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 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,...
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