Wilmington City Ry. Co. v. Wilmington & B. S. Ry. Co.
| Decision Date | 11 April 1900 |
| Parties | WILMINGTON CITY RY. CO. v. WILMINGTON & B. S. RY. CO. |
| Court | Court of Chancery of Delaware |
8 Del.Ch. 468
WILMINGTON CITY RY. CO.
v.
WILMINGTON & B. S. RY. CO.
Court of Chancery of Delaware.
April 11, 1900.
Suit by the Wilmington City Railway Company, a corporation of the state of Delaware, against the Wilmington & Brandywine Springs Railway Company, for a preliminary injunction. Injunction allowed.
Willard Saulsbury, for complainant, William S. Hilles and Benjamin Nields, for respondent.
NICHOLSON, Ch.The bill in this cause was filed November 24, 1899, and prays as follows: "(1) That the said respondent, the Wilmington and Brandywine Springs Railway Company, may fully and truly answer this bill of complaint, but not under oath, the same being hereby expressly waived. (2) That the said respondent, its successors, officers, employes, workmen, contractors, agents, deputies, and attorneys, may be restrained by the injunction of this honorable court from locating, constructing, operating, or maintaining a city railway within the city limits of the city of Wilmington; from cutting, tearing up, or removing the tracks of your orator, or any portion thereof; from hindering or delaying the operation of the cars over the lines of your orator; from interfering with, cutting, or removing the trolley wires of your orator, or any portions thereof; and from operating or attempting to operate its railway except in accordance with the terms of the contract hereinbefore set forth; and that a preliminary injunction may be issued from this honorable court restraining said respondent and its successors, officers, employes, contractors, workmen, agents, deputies, and attorneys in like manner until the further order of the chancellor. (3) That the complainant may have such other and further relief as the nature of the case may require. (4) That subpœna may issue for the said the Wilmington and Brandywine Springs Railway Company, as defendant in this cause." Upon the presentation of complainant's bill, the chancellor being absent from the state at the time, the chief justice, in accordance with the provision of the constitution in such case made and provided, granted a rule, returnable before the chancellor, to show cause why the preliminary injunction prayed for in said bill should not be awarded, with a restraining order until the determination of the rule. The respondent filed its answer January 3, 1900. Affidavits have been presented and read on both sides, and the questions involved argued by counsel upon the motion for a preliminary injunction with extraordinary fullness and earnestness, the pecuniary interests at stake being very large, and the principles involved of great importance. The complainant operates many miles of electric street railway in the city of Wilmington by what is known as the "trolley system," and claims as a vested right, so long as its charter is unrevoked, the exclusive right and privilege of locating, constructing, operating, and maintaining street railways in the city of Wilmington under its original charter passed at Dover, February 4, 1864, being chapter 406, 12 Del. Laws. This is one of the grounds upon which it prays this court to restrain the defendant, which, under the authority of a special charter, and the supplements thereto, seeks to locate and operate another electric railway on certain streets in the city of Wilmington, from entering the city, or crossing complainant's tracks. Although other and entirely independent reasons for the relief asked are alleged in the bill, and urged with equal earnestness and ability by complainant's counsel, yet this is the most fundamental and far-reaching contention, and one which, if sustained, would dispense with the consideration of any of the others.
Section 7 of complainant's charter (12 Del. Laws, p. 429) provides as follows: "It shall be the business of the said corporation 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. The said corporation shall have the exclusive right and privilege of locating, constructing, operating and maintaining a city railway within the city limits. The said railway shall commence near the depot of the Philadelphia, Wilmington and Baltimore Railroad Company, and thence shall extend to the intersection of Front street and Market street by the street or streets most directly leading thereto; thence through and along Market street to its intersection with Tenth street, and thence through and along Tenth street and Delaware avenue to such place or places as the directors may select, either within or without the city, not being more than six miles distant from the city limits. * * * And provided also, that steam power shall not be used to propel the cars of the said company unless with the consent of the city council and that in order to prevent accidents suitable bells shall be attached to the horses drawing the cars. The said railway may cross any track of any railroad company, now
incorporated or hereafter to be incorporated: provided, that it conform to the grade of the track to be crossed." Section 8 is as follows: "The said corporation shall at any time have full power to locate, alter and extend its tracks through and along any streets, avenues, highways and turnpikes in the city of Wilmington: provided, that the consent of the council of the said city shall first be obtained so to do. And the said corporation shall at any time have full power to locate, alter and extend its tracks from said city to any place or places outside of the city not more than six miles distant from the city limits. And with respect to any railway which may hereafter be located and constructed under the provisions of this section, the said corporation shall have and exercise all the rights and privileges, and be subject to all the duties and responsibilities which shall belong to or devolve upon the said corporation with respect to the railway to be originally located, constructed, operated and maintained under the provisions of this act." Counsel for the respondent have analyzed these sections with great subtlety and acumen, and, applying to them the strict rules of construction adopted by all our courts with reference to grants of exclusive rights, or monopolies of any sort, they have argued first that the grant of exclusive right within the city is limited by the context to the line described in section 7, viz. from the depot of the Philadelphia, Wilmington & Baltimore Railroad Company out Market street and Delaware avenue, and does not extend to the additional tracks which the complainant is authorized by section 8 to locate and extend "through and along any streets, avenues, highways, and turnpikes in the city of Wilmington." "Second. That no authority was granted in the charter to use electricity as a motive power, and therefore the grant of exclusive right, whether confined to the Market street and Delaware avenue line, or including the whole city, could not mean an exclusive right to operate an electric street railway, and could not enable complainant to prevent the construction and operation of another electric street railway by another company." They further argued that, even admitting complainant's contention that the grant of exclusive right applied to the whole city of Wilmington, and to the operation of street railways by electricity as a motive power, as well as by horses or steam, yet the legislature had the power to revoke this exclusive right, without revoking the whole charter, under the power of revocation expressly reserved by the constitution of 1831, and that by necessary implication the legislature has done so in so far as it has granted to the respondent the inconsistent right to locate and operate an electric railway on certain specifically described streets in the city of Wilmington.
This contention fairly raises the question of the precise meaning and effect of a clause in section 17, art. 2, Const. 1831, which for many years has been discussed by lawyers in this state, but which never yet has been authoritatively decided by our courts. With the context, this clause reads: "No act of incorporation except for the renewal of existing corporations, shall be hereafter enacted without the concurrence by two thirds of each branch of the legislature; and with a reserve power of revocation by the legislature." Counsel have cited all the cases in which our state courts have hinted in any way at a construction of this clause, and have omitted none of the long line of decisions of the supreme court of the United States which have gradually built up a body of doctrine applicable to this question, which it will be necessary for me to examine and review in order to arrive at a construction of this constitutional provision which shall be in harmony with the authorities this court is bound to respect. The Dartmouth College Case was the first in which the phrase, "impair the obligation of a contract," contained in the constitutional limitations of the powers of the states, received a direct judicial construction applying it to a corporate charter, and it is well known that there is no decision of the supreme court more important in its results, or cited and analyzed more frequently. Chief Justice Marshall, Mr. Justice Washington, and Mr. Justice Story each delivered a separate opinion. Mr. Justice Johnson and Mr. Justice Livingstone concurred, and Mr. Justice Duvall dissented. Mr. Justice Story, at the conclusion of his opinion, said: "In my judgment, it is perfectly dear that any act of the legislature which takes away any powers or franchises vested by its charter in a private corporation or its corporate officers, or which restrains or controls the legitimate exercise of them, or transfers them to other persons without their assent, is a...
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