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ARGUMENTS OF PLAINTIFFS.

damages against said city in the sum of five thousand dollars. The city thought it unjust that it should be held liable for damages where the defective condition of a sidewalk was not actively caused by itself or its agents, and so had the above law passed by the Legislature.

Feb. 1889, action brought.

Feb. 18-21, 1889, motion for new trial denied.

March 1889, Street and Sewer Department took action to have law passed.

Apr. 24, 1889, law passed by Legislature.—18 Del. Laws, 889.

LAW.

(1) The liability of a municipality for injuries resulting from unsafe and defective streets and sidewalks is either an express or statutory liability or an implied or common law liability.

Hill vs. Boston, 122 Mass., 344.

(a) The only express or statutory liability of the City of Wilmington is that contained in the act of 1889.

18 Del. Laws, 889.

And when there is an express liability there can be no implied liability for

"Expressio unius exclusio alterius."

(b) And there never can be an implied liability when there is anything in either the charter of the municipality, or the legislation of the State, negativing the inference of such implied liability. 2 Dillon, Sec. 1018.

(2) A municipality is a creature of the Legislature, and as the Legislature can impose the duty and the liability so it can limit or even completely remove said duty and liability, unless prevented from so doing by the Constitution of the United States or the Constitution of our own State.

ARGUMENTS OF PLAINTIFFS.

"The only restraint upon the power of the Legislature in this State is that imposed by the State or Federal Constitution."

Wilson vs. P. R. R. Co., 5 Del. Ch., 524, at 534; 1 Dillon, Secs. 44 and 54-55 and note to 55; Cooley's Const. Lims., 230; Nichols vs. City Minneapolis, 30 Minn., 545, at 547; State vs. Allmond, 2 Houst., 612, at 634; Coyle vs. McIntyre, 7 Houst., 44, at 90-92 and 98-100.

The above law in no way interferes with

VESTED RIGHTS.

"The City of Wilmington has no vested rights against the State nor rights not subordinate to the authority of the State."

Coyle vs. McIntyre, 7 Houst., 44, at 92; 1 Dillon, Secs. 55 (note) and 54 (note); Cooley's Const. Lims., 231.

NOR DOES THE SAID LAW IMPAIR THE OBLIGATION OF CONTRACTS.

"Its charter or act of right to incorporation is in no sense a contract with the State."

Coyle vs. McIntyre, 7 Houst., 44, at 91.

"Such legislative interferences cannot be said to impair the contract by which the corporation was formed because there is in reality but one party to it" [the State.]

Coyle vs. McIntyre, 7 Houst., 44, at 90; 1 Dillon, Sec. 54.; 2 Dillon, Sec. 967; Pomeroy's Const. Law, 381; 3 Am. and Eng. Ency. Law, 693 and 745; Cooley's Const. Lims., 231; City Detroit vs. Blackeby 21, Mich., 84.

The will of the Legislature is supreme and the law, therefore Constitutional.

Sherman and Red. on Neg., Sec. 124 (Ed. 1880); 2 Dillon, Sec. 1018.

ARGUMENTS OF PLAINTIFFS.

EXEMPTION OF CITY FOR NONFEASANCE AND MISFEASANCE OF

J. Barnard-at 375:

CERTAIN OFFICERS.

"I am unable to see why the same legislature may not create a city and limit its liability. The power is constantly exercised." (yr. 1868)—Gray vs. City of Brooklyn, 50 Barb., 365.

J. Daniels:

"The redress may not always prove to be as entirely adequate to the injury as an action directly against the corporation itself, but even if that be conceded, it will not justify the conclusion that the act is in conflict with the Constitution on that account."

Gray vs. Brooklyn, 2 Abbott's Ct. App. Dec., 267.

J. Bradley-at 108-9:

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Except as far as qualified by the statute, its liability to individuals sustaining damages occasioned solely by the fault or negligence in the performance of that duty existed, and that to relieve itself from such responsibility it must be made to appear that the cause of the injury complained of, so far as it may tend to support an action, is within the provisions of the statute exempting the city from liability."

(yr. 1890)—Bieling vs. City Brooklyn, 120 N. Y. App., 98; (yr. 1882)-Fitzpatrich vs. Slocum et. al., 89 N. Y. App.,358; (yr. 1882) -Hardy vs. City Brooklyn, 90 N. Y. App., 435.

(City exempt from liability unless actual notice twenty-four hours before accident. No liability at all for constructive notice.)

J. Learned-at 518:

"The city shall not be liable to repair streets except after this actual notice, and thus regulating the liability it practically regulates the duty which the city owes to individuals.

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A ques

tion similar to this was in Gray vs. Brooklyn, in which the Court of Appeals sustained a similar provision."

(yr. 1884)— Van Vrankin vs. City Schenectady, 31 Hun., 516.

ARGUMENT OF PLAINTIFFS.

J. Landon-at 204 and 205:

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"Its object is to exempt the city from liability unless it has actual notice [24 hrs.] as distinguished from constructive noticewhich may be no notice. The plaintiff urges that the statute is unconstitutional because it deprives the plaintiff of her remedy against the party who has injured her, and does not afford her any other remedy. * This statute does not take it The Legislature may make such rules to secure it [remedial justice] as its wisdom approves subject only to the restraint of the Constitution."

away.

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(yr. 1889)—McNally vs. City Cohoes, 53 Hun., 202.

(City wholly and absolutely exempt, and others liable only if out of repair twenty-four hours.)

J. Crocker-at 463:

"The act exempts her [city] from liability in any event, but the liability of other persons and public officers from damages is made to depend on this fact" [out of repair for twenty-four hours.] (yr. 1863)-Parsons vs. City and County San Francisco, 23 Cal., 463.

(City wholly and absolutely exempt.)

J. Prim-at 526-27:

"This provision of the charter, it will be seen, expressly exempts the city from any liability to persons for injuries received on account of streets being defective or out of repairs, that it certainly cannot be claimed that there is an implied contract to that effect, when in the very act of the Legislature under which the city is incorporated it is expressly provided that it shall not be liable for injuries to the person growing out of the defective condition of its streets and sidewalks."

(yr. 1869.)-O'Hara vs. City Portland, 3 Ore., 525.

(City wholly and absolutely exempt, but officer or other person liable for wilful neglect.)

ARGUMENT OF PLAINTIFFS.

J. Lord-at 259:

"The first clause expressly exempts the city from any liability to persons for injuries received on account of the streets being defective or out of repair. In O'Hara vs. City Portland, 3 Ore., 526, a provision similar to this clause was held to be constitutional and the city not liable for injuries sustained by reason of a defective sidewalk."

(yr. 1881.)-Rankin vs. Buckman, 9 Ore., 253.

(City wholly and absolutely exempt but council liable for "wilful neglect.")

J. Deady-at 647-8:

"In O'Hara vs. Portland, 3 Ore., 525, the Supreme Court held that section so far as it exempted the city from liability to be Constitutional. * * * In Rankin vs. Buckman, 9 Ore., 253, a case arising in East Portland, the Court held in a similar section in the charter of that place that while the city was thereby exempted from liability in such cases [Council was not in case of "wilful neglect"], neglect which will make them personally responsible must be 'wilful,' that is intentional and designed."

(yr. 1892.)-Ball vs. Woodward, 51 Fed. Rep., 646.

(County made liable by statute and county exempted by statute -no one liable).

C. J. Strahan-at 316:

"The repeal of the statute creating the liability of a county for negligence is not the only way that liability might be destroyed. It is within the power of the Legislature to repeal the act creating a county, and with such repeal a liability would be as effectually canceled and destroyed as if the county never existed."

J. Bean at 320:

"In O'Hara vs. Portland, 525, this Court held that an act of Legislature exempting the City of Portland from liability for an injury to the person, growing out of the defective condition of any

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