The Chancellor:—•
A bill was filed in this cause to restrain the Council of Newark from taking a portion of complainants’ land situated on Main street in the town of Newark under condemnation proceedings, from which they had already taken an appeal.
An answer was filed by the Council of Newark, but subsequently an agreement of counsel was entered into and the cause was then argued before me on a case stated.
The briefs filed by counsel cited a great number of authorities and discussed ably and with thoroughness the questions formally submitted for my decision, which I will consider seriatim as they were presented.
“First. Was the alleged petition of freeholders, presented to The Council of Newark on August 5, 1891, as set forth in the agreement of facts, sufficient under the various acts of Assembly incorporating the Town of Newark?”
This petition did comply in every particular with the requirements of the charter, 18 Del. Laws 322, ch. 175, sec. 37, which section has not been affected by any subsequent amendment.
“Second. Were all the formalities and prerequisites for the adoption of an ordinance by The Council of Newark, under which the said Council has attempted to appropriate the said land, complied with, and was such ordinance properly adopted. ’ ’
Counsel for the complainants urged that this ordinance was not properly adopted because it was passed at a special meeting, the call for which did not specify the adoption of the ordinance as one of the purposes for which the meeting was called.
The charter, sec. 13, provides that Council shall “meet at least once in every month at such time or times and place as [79]*79it shall appoint. Special meetings may be called, by the president of Council upon his own motion, or shall be called at the request of three members,” It further provides that “no ordinance shall be passed without the concurrence of a majority of the members of the Council, and unless it shall have had at least two readings at a previous stated meeting or meetings.”
The ordinance in question was as follows:
“Be it Ordained by the Council of Newark, that Main Street of Newark, Delaware, between the eastern boundary line thereof and the Baltimore and Philadelphia railroad tracks, shall be of the uniform width of forty feet between curb lines and that the width of the pavements on Main Street in the town of Newark shall be six feet.”
This ordinance was read twice at a stated meeting held August 5, 1891, at which the petition above referred to was presented; and the call for the special meeting at which the ordinance was adopted stated, inter aha, that the meeting was called “for the purpose of consulting in regard to the question of damages for widening the street front of property of Benjamin Caulk estate,” which is the property in dispute in this .cause, and it appears from the agreed statement of facts that it is situated on that portion of Main street to which the ordinance refers.
I am of opinion, in view of the facts presented by the case stated, that it might be fairly understood from this notice that the passage of the ordinance, which had been read twice the week before, at the last regular stated meeting, was one of the purposes or objects for which the meeting was called.
This is all that is required from a notice or a warrant for a special meeting, as is laid down by Judge Dillon in his authoritative work on municipal corporations, Vol. 1, sec. 267, and the authorities are in accord upon this point.
“Third. Did the failure of the secretary of the Council of Newark to record the ordinance, under which the defendant is attempting to appropriate said land, in a book called ‘Ordinances’ until August 1, 1895, entitle the complainants to maintain their bill for an injunction?”
[80]*80Section 16 of the charter, 18 Del. Laws 313, ch. 175, provides, inter alla, that “he (the secretary) shall have in his charge the Ordinances, which shall be recorded in a book or or books provided, by Council for that purpose and called ‘Ordinances,’ ”
This is clearly directory and not a condition upon which depends the validity of the ordinance, so that the secretary’s delay in recording the disputed ordinance until August 1, 1895, in no way affected its validity. 1 Dill. Mun. Corp. sec. 335; Trustees of the Erie Academy vs. City of Erie, 31 Pa. St. 515; Upington vs. Oviatt, 24 0. St. 232, 241.
In the cases cited by complainants’ counsel, recording or publication was expressly made a condition precedent to the validity of the ordinance.
“Fourth. Was the appointment of the commissioners to assess the damages to the complainants by Honorable Charles B. Lore, Chief Justice, according to law?”
It is provided in the charter, sec. 38, “And if any owner or owners shall be dissatisfied with the amount of the damages or compensation allowed by said council, he, she or they may within ten days after said notice is received, appeal from the assessment of damages or compensation aforesaid by serving on the president of said council, a written notice to that effect, and said owner or owners shall with (in) ten days after the expiration of the ten days allowed for appealings, and upon ten days notice to the president aforesaid, make written application to the associate judge of the superior court, resident of New Castle County, for the appointment of commissioners to hear and determine the matter in controversy; and thereupon the associate judge aforesaid, shall issue a commission under his hand, directed to five freeholders of said county, two of whom shall be residents of said town, commanding them to assess the damages which the owner or owners of said, lands through or over which said street, lane or alley is to pass.”
Subsequently, April 12, 1893, a general statute was passed, 20 Del. Laws 184, ch. 118, which provided as follows:
[81]*81“That during the illness or absence from his county of any associate judge the powers and duties required by any statute of this State to be exercised and performed by him in relation to the discharge of prisoners and convicts under Section 10, Chapter 133 of the Revised Code, the issue of fractional liquor licenses, the approval of assignment of liquor licenses, or the proceedings for the condemnation of property to be taken or applied to any municipal or other public use, may be as fully and effectually exercised and performed in all respects by the Chief Justice, or any other associate judge of this State, as by the said resident judge.”
1 The complainants being dissatisfied with the amount of damages or compensation allowed by the Council of Newark took their appeal in the manner provided by section 38 of the charter of Newark, above quoted, except that the Associate Justice, Honorable Ignatius C, Grubb, being at the time absent from the county, they made their application to the Chief Justice in accordance with the provisions of the general statute quoted above.
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The Chancellor:—•
A bill was filed in this cause to restrain the Council of Newark from taking a portion of complainants’ land situated on Main street in the town of Newark under condemnation proceedings, from which they had already taken an appeal.
An answer was filed by the Council of Newark, but subsequently an agreement of counsel was entered into and the cause was then argued before me on a case stated.
The briefs filed by counsel cited a great number of authorities and discussed ably and with thoroughness the questions formally submitted for my decision, which I will consider seriatim as they were presented.
“First. Was the alleged petition of freeholders, presented to The Council of Newark on August 5, 1891, as set forth in the agreement of facts, sufficient under the various acts of Assembly incorporating the Town of Newark?”
This petition did comply in every particular with the requirements of the charter, 18 Del. Laws 322, ch. 175, sec. 37, which section has not been affected by any subsequent amendment.
“Second. Were all the formalities and prerequisites for the adoption of an ordinance by The Council of Newark, under which the said Council has attempted to appropriate the said land, complied with, and was such ordinance properly adopted. ’ ’
Counsel for the complainants urged that this ordinance was not properly adopted because it was passed at a special meeting, the call for which did not specify the adoption of the ordinance as one of the purposes for which the meeting was called.
The charter, sec. 13, provides that Council shall “meet at least once in every month at such time or times and place as [79]*79it shall appoint. Special meetings may be called, by the president of Council upon his own motion, or shall be called at the request of three members,” It further provides that “no ordinance shall be passed without the concurrence of a majority of the members of the Council, and unless it shall have had at least two readings at a previous stated meeting or meetings.”
The ordinance in question was as follows:
“Be it Ordained by the Council of Newark, that Main Street of Newark, Delaware, between the eastern boundary line thereof and the Baltimore and Philadelphia railroad tracks, shall be of the uniform width of forty feet between curb lines and that the width of the pavements on Main Street in the town of Newark shall be six feet.”
This ordinance was read twice at a stated meeting held August 5, 1891, at which the petition above referred to was presented; and the call for the special meeting at which the ordinance was adopted stated, inter aha, that the meeting was called “for the purpose of consulting in regard to the question of damages for widening the street front of property of Benjamin Caulk estate,” which is the property in dispute in this .cause, and it appears from the agreed statement of facts that it is situated on that portion of Main street to which the ordinance refers.
I am of opinion, in view of the facts presented by the case stated, that it might be fairly understood from this notice that the passage of the ordinance, which had been read twice the week before, at the last regular stated meeting, was one of the purposes or objects for which the meeting was called.
This is all that is required from a notice or a warrant for a special meeting, as is laid down by Judge Dillon in his authoritative work on municipal corporations, Vol. 1, sec. 267, and the authorities are in accord upon this point.
“Third. Did the failure of the secretary of the Council of Newark to record the ordinance, under which the defendant is attempting to appropriate said land, in a book called ‘Ordinances’ until August 1, 1895, entitle the complainants to maintain their bill for an injunction?”
[80]*80Section 16 of the charter, 18 Del. Laws 313, ch. 175, provides, inter alla, that “he (the secretary) shall have in his charge the Ordinances, which shall be recorded in a book or or books provided, by Council for that purpose and called ‘Ordinances,’ ”
This is clearly directory and not a condition upon which depends the validity of the ordinance, so that the secretary’s delay in recording the disputed ordinance until August 1, 1895, in no way affected its validity. 1 Dill. Mun. Corp. sec. 335; Trustees of the Erie Academy vs. City of Erie, 31 Pa. St. 515; Upington vs. Oviatt, 24 0. St. 232, 241.
In the cases cited by complainants’ counsel, recording or publication was expressly made a condition precedent to the validity of the ordinance.
“Fourth. Was the appointment of the commissioners to assess the damages to the complainants by Honorable Charles B. Lore, Chief Justice, according to law?”
It is provided in the charter, sec. 38, “And if any owner or owners shall be dissatisfied with the amount of the damages or compensation allowed by said council, he, she or they may within ten days after said notice is received, appeal from the assessment of damages or compensation aforesaid by serving on the president of said council, a written notice to that effect, and said owner or owners shall with (in) ten days after the expiration of the ten days allowed for appealings, and upon ten days notice to the president aforesaid, make written application to the associate judge of the superior court, resident of New Castle County, for the appointment of commissioners to hear and determine the matter in controversy; and thereupon the associate judge aforesaid, shall issue a commission under his hand, directed to five freeholders of said county, two of whom shall be residents of said town, commanding them to assess the damages which the owner or owners of said, lands through or over which said street, lane or alley is to pass.”
Subsequently, April 12, 1893, a general statute was passed, 20 Del. Laws 184, ch. 118, which provided as follows:
[81]*81“That during the illness or absence from his county of any associate judge the powers and duties required by any statute of this State to be exercised and performed by him in relation to the discharge of prisoners and convicts under Section 10, Chapter 133 of the Revised Code, the issue of fractional liquor licenses, the approval of assignment of liquor licenses, or the proceedings for the condemnation of property to be taken or applied to any municipal or other public use, may be as fully and effectually exercised and performed in all respects by the Chief Justice, or any other associate judge of this State, as by the said resident judge.”
1 The complainants being dissatisfied with the amount of damages or compensation allowed by the Council of Newark took their appeal in the manner provided by section 38 of the charter of Newark, above quoted, except that the Associate Justice, Honorable Ignatius C, Grubb, being at the time absent from the county, they made their application to the Chief Justice in accordance with the provisions of the general statute quoted above.
Counsel for the complainant now urges that the Chief Justice had no jurisdiction and his appointment of freeholders to assess damages was void, inasmuch as the general statute empowering him to act in the absence of the Associate Justice was an amendment to the charter of Newark, and, therefore, void, because it does not appear to have been enacted by a two-thirds vote.
A general provision of this nature, however, cannot be considered an amendment to the charter of any municipality. It belongs to that class of acts which regulate the forms of administering justice by the Court. It affects in no other respect the proceedings for condemnation prescribed in the charter of the town of Newark, nor does it in the slightest particular alter the rights conferred upon the town by its charter.
General legislation of this character allowing one Justice of the higher courts to act in the absence of another, solely to facilitate the dispatch of business by the Courts, is univer[82]*82sally held to be an incident of sovereignity presumed to be reserved in the enactment of all charters.
“Fifth. Are the complainants precluded from seeking a remedy by injunction after having applied to Honorable Charles B. Lore, Chief Justice, for the appointment of a commission as aforesaid?”
What I have already stated in my consideration of the preceding questions render it unnecessary to consider this last question.
There still remains to be considered one other contention which was strongly urged by complainants’ counsel, although not specifically formulated as one of the questions submitted, it being urged by him that it was a defect lying at the bottom of the whole condemnation proceeding.
At the time of the adoption of the ordinance widening Main street, power to widen was expressly conferred upon the Council by section 37, but the power to condemn land for laying out new streets, squares, lanes or alleys, given in the following section 38, was not made to include the power to condemn land for the widening of streets etc., already opened. This additional power was given by the amendment to the charter passed January 31, 1893, being chapter 744, Vol. 19, Laws of Delaware, and it is the contention of the complainants’ counsel that the Council, having no authority to condemn land for the widening of Main Street at the time of the adoption of the ordinance of August 12, 1891, the amendment of 1893, could not confer upon them the power to condemn under an ordinance which was adopted prior to its enactment.
The authorities cited by counsel in support of this contention deal with delays occurring between the different steps in condemnation proceedings, but the question here presented is quite different.
The whole power to widen Main Street possessed by the Council of Newark at the time, was exercised by its adoption of the ordinance of August 12, 1891, which had the same effect as a statute, fixing’the width, until it should be amended [83]*83or repealed. Then, when the power to exercise the right of eminent domain, was subsequently conferred, the condemnation proceedings regularly instituted and carried through, were independent proceedings and not connected with the ordinance determining the width of the street, otherwise than if it had been a statute determining its width. In fact, it appears that there was such a statute, although, having found the ordinance to be regular and effective, it has not been necessary for me to consider it. 16 Del. Laws 659, ch. 497, sec. 1.
It follows, therefore, from the foregoing consideration of all the questions submitted and the agreed statement of facts, that the action of the Council of Newark, in entering upon and occupying the land in the statement of facts described, was lawful, and that a decree must be entered dismissing complainant’s bill with costs.
Let the decree be entered accordingly.