CHAPTER 63.
STATE HIGHWAY DEPARTMENT.
AN ACT to create a State Highway Department establishing a system of State Highways and providing for the improvement and maintenance thereof, and the appropriating and borrowing money therefor.
Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (three-fourths of all the members elected to each House concurring):
Section 1. The words and phrases used in this Act, unless the same be inconsistent with the *contest [*contents], shall be construed as follows: (1) "Department" shall refer to and mean the "State Highway Department" created by this Act;
(2) "road" and "highway" shall include any public way or road or portion thereof and any sewer, drain or drainage system connected therewith and any bridge, culvert, viaduct or other constructed or artificial way used in connection therewith and anything which may be accessory to any of the same or to the use thereof; (3) "State Highway" is and shall include any "road" or "highway" or portion thereof which the Department has constructed or, of which the Department has taken or assumed control or jurisdiction; (4) "fixed charges" as applied to any State Highway constructed or reconstructed, are the aggregate of the amount of the interest, calculated upon the cost of such construction or reconstruction at the rate at which the money used in such construction or reconstruction was borrowed, and an amount for the sinking fund, calculated upon said cost at the rate of two and one-half per centum per annum and the probable annual expense of the maintenance of such constructed or reconstructed highway estimated at a rate of not less than five hundred dollars for each mile of reconstructed and not less than two hundred and fifty dollars for each mile of constructed highways, "fixed charges" as applied to any highway proposed to be constructed or reconstructed are the interest, calculated at the rate at which the money proposed to be used in such proposed construction or reconstruction can probably be borrowed, and an amount for the sinking fund, calculated at the rate of two and one-half per centum per annum as aforesaid, on the cost which it is estimated will probably be expended in such proposed construction or reconstruction and the probable annual expense of the maintenance of such highway when constructed or reconstructed estimated at rates not less than required as aforesaid for the maintenances of constructed or reconstructed highway; (5) "net saving of reconstruction" exists when the total fixed charges of a reconstructed highway for a given period is less than the total estimated fixed charges for said highway for the same period if it had been constructed; (6) "excess of revenue" exists when the estimated revenues for a year for which a budget is made exceeds the estimated expenditures for the same year; (7) "construction" is the first complete building or rebuilding of a road or highway, after it has been converted into a State Highway, upon a modern engineering design with a permanent foundation of cement concrete or other equally hard and permanent material and a top dressing of suitable material to economically withstand the wear of the particular traffic to which such highway will probably be subject, with an adequate drainage system, so that such highway, with reasonable maintenance, can reasonably be expected to endure for upwards of forty years; (8) "reconstruction" is the first extensive repairing of an improved road converted into a State Highway, and before the department shall have constructed such highway, as, in the opinion of the department and the chief engineer will result in a State highway of such permanency that there will be a net saving of reconstruction; (9) "maintenance" as applied to constructed or reconstructed highways, is the upkeep and support thereof with true surfaces in a hard, smooth condition as when such highways were constructed or reconstructed and with proper and adequate drainage systems, and "maintenance," as applied to State highways not constructed or reconstructed, is the upkeep and support thereof in as high a condition of perfection as is consistent with the character of such unconstructed or unreconstructed highway, "maintenance" shall include the keeping of the right of ways of all State highways clear of underbrush and debris which might interfere with the drainage or injure the foundation of such highways and the setting out and preserving of trees where desirable along such right of ways.
As used in this act the words "construct" and "constructed" shall be defined in accordance with the definition of "construction"; the words "reconstruct" and "reconstructed" shall be defined in accordance with the definition of "reconstruction" and the words "maintain" and "maintained" shall be defined in accordance with the definition of "maintenance."
Section 2. That there is hereby created a State Department to be known as the "State Highway Department" which shall consist of the Governor of the State and four other members. On or before the first day of May, 1917, the Governor shall appoint four suitable persons who, together with the Governor, shall be members of said department. The members so appointed shall be, during their terms of office, citizens of the State of Delaware and one shall be a resident of the City of Wilmington, one a resident of New Castle County, outside of said City, one a resident of Kent County and one a resident of Sussex County. Those members who are to be resident members of the respective districts shall be designated by the Governor in their appointment. Upon making said appointments, the Governor shall certify the same to the Secretary of State and to the appointees. The terms of office of the first appointees as members of said department shall be from the first day of May, 1917, as follows:
The member resident in the City of Wilmington, two years, the member resident in New Castle County, outside said City, four years, the member resident in Kent County, six years, and the member resident in Sussex County, eight years. After the expiration of the terms of office aforesaid, the Governor shall appoint members of the Department for the full term of eight years. Appointments to membership in the department shall be made so that not more than two members of said department shall belong to the same political party. In case of a vacancy in the Department for any reason, the Governor shall fill said vacancy for the unexpired term.
Section 3. Within thirty days after the appointment of the members aforesaid, they shall convene at the State Capitol at Dover, at a time to be fixed by the Governor and organize by electing one of their members Chairman. Before entering upon the duties of the office, each member shall take and subscribe an oath or affirmation as prescribed in Article XIV, of the Constitution. Such oath or affirmation shall become one of the records of the Department. Three members shall constitute a quorum, and, except as herein otherwise provided, a majority of the members present and constituting a quorum, shall be sufficient for any action by the Department. The Governor shall have no vote except in the event of a tie vote in the Department.
Section 4. As soon after the organization as is practicable the department, at least three members concurring, shall employ a chief engineer, for such time, not exceeding one year, as may be determined by the department, who shall be a civil engineer, and at the time of his employment, not less than thirty years of age and shall have been in active practice of his profession for ten years and shall have had responsible charge of road engineering work for at least five years and shall be qualified to design as well as to direct road engineering work. Graduation from a school of engineering of recognized reputation shall be considered as equivalent to two years of active practice. The said department, at least three members concurring, shall also employ a secretary. The Chief Engineer and the Secretary before entering upon the duties of their offices shall give such bond, if any, as may be required by the said department for the faithful performance of their respective duties in such positions, respectively, and the chief engineer shall take and subscribe an oath or affirmation like that required of a member of said department. The chief engineer may be paid a salary not in excess of seven thousand five hundred dollars ($7,500.00) a year, and the secretary may be paid a salary not in excess of three thousand dollars ($3,000.00) a year. The members of the department shall receive no compensation for their services, but shall receive their actual expenses incurred while engaged in the affairs of the department.
Section 5. It shall be the duty of the department to acquire full information concerning the roads of the State, the nature and improvements thereof, the needs thereof, and the character and amount of traffic thereon and such other details as may be necessary or desirable for the department to have in the performance of its duty of determining upon and laying out, without regard to any personal advantage or disadvantage or bias toward any person or persons, community or political party or organization, consistent and congruous route or routes of State highways with a view to establishing such a consistent, congruous, comprehensive and permanent system of State highways along the route or routes of travel as will accommodate the greatest needs of the people of the State. It shall be the duty of the department to determine upon, lay out, construct or reconstruct State highways so as to make roads which, with reasonable maintenance, shall be permanent; to maintain all State highways under its jurisdiction; to institute and maintain a system of accounting adequate to give in detail the expenditures of the department and the cost of its works; to keep full and accurate minutes of all meetings and records of all proceedings of the department, which minutes and records shall be public records, and to these ends, the said department is hereby authorized and empowered to determine upon and lay out, within the recommendation of the chief engineer, a system of State Highways as aforesaid; to take over and convert into State highways and any public road by whatever name such road or part thereof, or under whatever authority or control such road or part thereof may have theretofore existed; to lay out, open, widen, straighten, grade, extend, construct, reconstruct and maintain any State highway or proposed State highway and for the purpose of the improvement of State highways, to acquire by condemnation or otherwise any land, easement, franchise, material or property, which, in the judgment of the department, shall be necessary therefor, provided, that the said department shall not reconstruct a highway unless there will result a net saving of reconstruction; to have access to and make copies of maps, surveys, data or information which any State agency may possess concerning any road in the State; upon the recommendation of the chief engineer to employ professional or technical experts, surveyors, agents, assistants, clerks, employees and laborers, skilled and unskilled, and also such advisors and consultants as may be required to accomplish the purposes of this Act, and to fix their compensation, and through the chief engineer, it shall have the power to remove or discharge them at its pleasure; to secure offices and quarters for the department to furnish the same; exclusively to grant franchise and licenses to public service corporations to use, under such conditions as may be prescribed, in whole or in part, the State highways for a term not exceeding fifty years, provided, that any franchise or license now owned by any such corporation shall not be affected by this Act; to make and enter into any and all contracts, agreements or stipulations for the execution of the purposes of this Act; to purchase all machinery, tools, supplies, material and instrumentalities whatsoever, which may be necessary for the full performance of duties imposed upon said department ; to call upon the Attorney General at its option for his opinion or advice touching its duties or powers ; generally, to do and perform everything whatsoever incidental and germane to the scope of the duties and powers of said department hereby imposed and conferred. The department shall have no power, authority, or jurisdiction of the streets of any incorporated city or town, unless such power, authority and jurisdiction shall be voluntarily given and surrendered by such city or town to the department, and then only upon such terms as the department shall prescribe.
Section 6. The department shall have power to cross any canal, navigable stream or watercourse with a state highway, but in such manner as not unnecessarily to impede the navigation and use thereof, and also shall have power to cross any railroad or railway with a State highway and acquire the necessary easement for such crossing either by agreement with the owner thereof or, on failure to agree, by condemnation thereof as prescribed in Section 11 of this Act, provided, that no State highway shall cross any railroad or railway at grade except at a point or place where such railroad or railway is now crossed at grade by a public road.
Whenever the department determine that a State highway crossing of a railroad or a railway at grade should be abolished and an overhead or undergrade crossing substituted, the department may, by bill, apply to the Chancellor to consider and determine the practicability of such overhead or undergrade crossing of such railroad or railway, and the Chancellor, upon the filing of such bill by the department, shall have full power and jurisdiction to hear and to determine the matter by an appropriate decree, either that it is practicable or impracticable to abolish such crossing at grade, and, if he should determine it to be impracticable, he shall dismiss the bill; or if he should determine it to be practicable, he shall further decree whether the crossing shall be overhead or undergrade and the character thereof. If the department determines to build a State highway across any railroad or railway at a point or place where such railroad or railway is not now crossed at grade by a public road, it shall apply to the Chancellor as aforesaid to consider and determine as aforesaid if it is practicable to build such a crossing other than at grade, and if he determines that it is impracticable to cross such railroad or railway except at grade, the said crossing shall not be constructed, and if he determines that it is practicable to construct such crossing other than at grade, he shall decree as aforesaid the manner and character of said crossing. If the Chancellor shall determine in any such proceedings that an overhead or undergrade crossing should be constructed, he shall *be [*by] his decree apportion the costs and expenses of construction of such crossing between the company owning the railroad or railway, and the department, as shall be just and equitable, and prescribe the method of ascertaining the said costs and expenses and the time or times and manner of the payment thereof by the parties liable therefor. In all cases there shall be an appeal from the decree of the Chancellor to the Supreme Court as in other cases in equity.
All work pertaining to the construction of any overhead or undergrade structure within the limits of the right-of-way of any railroad or railway company whose property is being crossed by a State highway shall be done and performed by the railroad or railway company owning or controlling such property and that which is without the limits of said right-of-way shall be done and performed by the department, the same to be paid for as hereinbefore provided.
Section 7. The chief engineer shall immediately upon assuming the duties of his office, prepare or acquire a survey and maps, plans or plots of the roads of the State, and information concerning the amount and nature of the traffic on the different portions thereof, the nature of the improvement thereof, if any, and the condition thereof, and such other details of information as will give assistance in laying out a system of State Highway or Highways as required by this Act. As soon as practicable and not later than the thirty-first day of December, 1917, he shall recommend to the department a program for the conversion of roads or portions of roads into state highways for the purposes of converting the road or roads of travel which will accommodate the greatest needs of the people of the State, into State highways ; the probable cost of the construction or reconstruction of such road or portion of road so recommended to be converted, and the roads or portions of roads which should first be converted and the probable amount of roads which could be constructed or reconstructed during the succeeding year. Annually thereafter the chief engineer shall make like recommendations modifying, if necessary, any recommendations theretofore made. The chief engineer shall have charge and supervision of all engineering work done by or under the control of said department, and he shall have charge and supervision of the maintenance of all State highways. He shall have power to discharge any employee of the department whose duties bring such employee under his authority. He shall also act as consulting engineer for the County Road Engineer of the respective Counties whenever required by the Department. In addition to the foregoing specified duties the chief engineer shall perform such other duties as may be reasonably required by him by said department.
Section 8. The said recommendation of the chief engineer as to location of the roads recommended to be converted into State highways shall be published once a week for four weeks in two newspapers in each county of the State, and after such publication, the department shall proceed to consider such recommendation and from such recommendations determine what roads or portions of roads, if any, during the year succeeding that in which the recommendations were made shall be converted into State highways. Upon such determination, the department shall proceed to cause said roads to be converted into State highways and constructed or reconstructed, if necessary, and maintained.
Section 9. Whenever the department is prepared to undertake the construction or reconstruction or maintenance of a road or portion of a road which shall come within the system of State highways, so recommended by the chief engineer and adopted by it, it shall certify to the Levy Court of that county in which such road or portion of road is located, or to the body having jurisdiction and control of such road or portion thereof, that on or after a certain date (specifying such date), that a certain road or part of a road (which shall in such certificate be described) shall be and become a State highway, upon such certificate to the Levy Court or to said other body, and upon the *arrival (*approval) of the date in said certification specified, the road therein described shall be and become a State highway, and the department shall be responsible for its construction, reconstruction and maintenance. Bridges may be converted into a State highway in the same manner as roads or portions thereof, and the duties, powers and authority of said department, with respect to bridges so converted, shall be the same with respect to other parts of the State highways.
Section 10. That the Secretary of the department shall also be the accountant thereof, and the department shall cause him to, and he shall inaugurate and maintain a system of accounting, which will show in detail the periodical expenditures of the department, the cost of the construction or reconstruction and of the maintenance of each road, and of various sections thereof, and such other details as the department from time to time may require. The secretary shall also perform the usual and customary duties of a secretary and such other duties as may be reasonably required of him by the department.
Section 11. Whenever the department cannot agree with the owner or owners of any land, building, franchise, easement, sand, earth, stone, gravel or other property necessary to be taken or used in the construction, reconstruction, or maintenance of any State highway or proposed State highway, which the department shall construct, reconstruct, straighten, widen, grade or otherwise improve, or shall propose to construct, reconstruct, straighten, widen, grade or otherwise improve, for the purchase thereof, the said department may apply to the associate judge of the State of Delaware, resident in the county where any such property necessary to be taken are located for the condemnation of such property, first giving to the other party or owner at least five days' notice in writing of the intended application if such party or owner is within the State, and if said party or owner is unknown or without the State, or if under legal disability and having no legal representative in the State, then such notice shall be published in some newspaper in the county in which said property proposed to be taken is located at least five days prior to the intended application, and such publication shall be sufficient notice; upon application made as aforesaid, the said associate judge shall appoint five judicious and impartial freeholders to view the premises or ascertain the easement or franchise, and assess the damages which the owner or owners will sustain by reason of the said construction, reconstruction, straightening, widening, grading, or other improvements to the highway, or the taking of such property. The freeholders shall be sworn or affirmed before some officer authorized to administer oaths or affirmations, before entering on the premises or before ascertaining the easement or franchise, faithfully and impartially to perform the duties assigned them. They shall give ten days' notice, in writing, to the owner or owners of the premises or property so proposed to be condemned or to their guardian or guardians, duly appointed, if within the State and to the said department of the time of their meeting to view the premises or ascertain the easement or franchise; if the owner or owners are unknown or are without the State or if under legal disability and having no legal representative in the State, publication of such last mentioned notice shall be made in some newspaper in the county in which the proceedings were instituted at least ten days prior to the said meeting, and such publication shall be sufficient notice thereof. The said commissioners shall keep a record of their proceedings with their findings and awards and return the same to the Prothonotary of the County in which the said proceedings were instituted, and shall certify their findings and awards to the owner or owners of the property and to the department; if the department or any party in interest is dissatisfied with such findings or awards, it or he may, on application to said Prothonotary within fifteen days after such findings and awards have been made and filed, sue out a writ of ad quod damnam, requiring the Sheriff of said County, in the usual form, to inquire of twelve impartial men of his baliwick of the damages which will be sustained as aforesaid, and their report shall be final. The said commissioners or the said jury shall, in assessing the damages aforesaid, take into consideration the benefits and advantages to the owner or owners resulting from the proposed highway improvement and set off the value of such benefits or advantages against the loss, detriment and disadvantages, which such owner will suffer, provided that in no case shall the amount estimated as and for benefits and advantages exceed the amount allowed for loss, detriment or disadvantage to such owner. The amount of damages being ascertained, the department may pay or tender the amount thereof within two months after the same shall have been so ascertained, to the person or persons so entitled thereto, or, if the person or persons so entitled refuse to accept or reside out of or are absent from the county during all or any part of said period of two months, the same may be deposited to his credit in the Farmers' Bank of the State of Delaware, in the county seat of the county wherein such proceedings are instituted, within said time, and thereupon said property may be taken and occupied for the use and purpose for which it was condemned, provided that the department, in its discretion, after it has made application as aforesaid, for the condemnation of property, may occupy or use such property without delay, and the proceedings for the ascertainment of the damages shall proceed as in this
section provided, but in the event of such immediate use or occupation as last aforesaid, the department shall pay to the owner or owners thereof if within the State, or if such owner or owners refuse to accept the amount of damages or are without the County, deposit to his or their credit in the said bank as aforesaid, within ten days after the damages have been ascertained, the amount thereof. The expenses of the assessment by the said commissioners of the damages aforesaid of the fees of the said Sheriff and Prothonotary and of all costs incurred in the execution of the writ of ad quod damnum, shall in all cases be paid by the department. The said judge shall have power to fill any vacancy in any commission and thereafter the commission shall proceed as though no vacancy had occurred.
In addition to the manner of condemnation of property in this section provided, the said department shall have the right to condemn any property in this Act mentioned for the purposes of this Act, in the same manner as fully as any person or persons or official body might or could condemn any property under other provisions of Chapter 55, of the Revised Code. Whenever any property shall be acquired by the department in any manner, the title to such property shall be in the State for the purpose for which it was acquired.
After the department has determined upon the road or roads which shall be converted into State highways, it shall cause notice thereof to be sent by mail, a record of which shall be preserved, to all persons owning property abutting upon and continuous to such road or roads, and any such owner or the legal representative of any such owner, who after such notice has been given, shall construct any building within sixty feet of the centre line of any such road shall be allowed no compensation for such building, upon the condemnation thereof, or the land upon which it is situated, unless such owner shall serve written notice upon the department within three months from the time that he receives such notice that he claims damages by reason of the provisions of this paragraph, in which event the said department may apply, as provided in the first paragraph of this section for the ascertainment of damages in other matters, for the ascertainment of the damages so claimed by such owner.
Section 12. All materials furnished to and all labor done for the department in excess of the probable cost of five hundred dollars except labor in connection with the maintenance of State highways, and employees directly under the chief engineer or secretary, shall be supplied or done under contract made after competitive bidding as herein provided. When the department proposes to construct or reconstruct any State highway or purchase any material in excess of said amount, the chief engineer shall prepare plans and specifications for such work, or section thereof, as may be deemed most advantageous to the State, or description of such material as the case may be, and shall advertise for sealed proposals to build or construct said road or section thereof or for such material. The advertisement for such bids shall be published at least once a week for four weeks in two newspapers in each County of the State, and shall be published at least once in two engineering journals of general circulation throughout the country, such advertisement shall be sufficiently full to indicate with reasonable accuracy the character, quantity and location of the work to be done, or the character and quantity of the material to be furnished, when work shall commence, and when it shall be completed, or the material be furnished, and the manner and time of payment for the work to be done, or the material to be furnished, the time and place of the opening of proposals, and the conditions to be complied with in submitting proposals. All proposals shall be accompanied by a good and sufficient bond to the State of Delaware for the benefit of the department, the form of and with surety to be approved by the department, with a warrant of attorney to confess judgment thereon attached thereto, or a deposit of a certified check of the bidder, drawn upon some responsible banking institution to the order of the department or money, both or either, for a sum equal to at least ten per centum of the bid. The proposals shall be publicly opened at the time and place specified in said advertisement, and the contract shall be awarded within twenty days by the department to the lowest responsible bidder, unless in the opinion of all the members of the department and the chief engineer, the interest of the State shall be better served by the awarding of contract to some other bidder, which may then be done, provided the department shall set down in its minutes the reason or reasons for granting the contract to the person other than the lowest responsible bidder. If two or more responsible bidders shall bid an equal amount, and such amount shall be the lowest bid, the department may award the contract to any one of them. The department shall have the power to reject all bids. Whenever the contract shall be awarded, the successful bidder shall promptly execute a formal contract to be approved as to its form, terms and conditions by said department, and a good and sufficient bond to the State of Delaware for the benefit of the department with surety, to be approved by the department for the faithful performance of such contract. Such bond shall have attached thereto a warrant of attorney authorizing the confession of judgment thereon for the benefit of the State. The department may, when it considers that the interests of the State require it, cause judgment to be confessed upon any such bonds. In the event of any successful bidder refusing or neglecting to execute such formal contract, and give such bond as required by the department, within thirty days of the awarding of the contract the said deposit which shall have accompanied the successful bid shall be taken and become the absolute property of the State for the benefit of the department as liquidated damages, and not as a forfeiture or as a penalty, and shall be deposited with the State Treasurer, and the department may award the contract to the next lowest responsible bidder or readvertise for new bids.
Upon the execution of such formal contract and bond, the said deposit shall be returned to contractor. The bonds or deposits of the unsuccessful bidders shall be returned to them immediately upon the awarding of the contract or the rejection of the proposals.
If any person entering into a contract under the authority of this Act shall neglect or refuse to perform it or fails to comply with the terms thereof, the department may declare the same void, and proceed to award a new contract in accordance with the provisions of this section.
All contracts for labor or material or either shall be made in the name of the department and shall be signed by the chairman and the chief engineer or secretary.
Whenever there is an unusual emergency which in the opinion of the department (at least three members concurring), together with the chief engineer, requires immediate attention to save any State Highway from damage, the department shall have power to employ labor and purchase material to prevent such damage without competitive bids.
Section 13. The execution and performance of all contracts awarded by the department shall be under the charge of the chief engineer, and his decision shall in all matters concerning the performance of the work and the compliance of the terms of the contract, be final.
Section 14. All moneys received by the State Treasurer under the provisions of Sections 197, 199 and 201 of Chapter 6, of the Revised Code, for the registration of motor vehicles and licensing the operators thereof for and during the year 1917, excepting fifty thousand dollars, are hereby appropriated for the uses and purposes of the department during the year 1917, and annually thereafter all moneys received by the State Treasurer under the provisions of said Sections 197, 199 and 201 are hereby appropriated for the said uses and purposes of said department during that year during which said motor vehicles are registered and operators thereof licensed upon the payment of the fees required by law therefor. Any money appropriated herein or received to the credit of the department in one year if unexpended during the said year, shall continue and be for the credit and use of the department and shall not be returned to the general fund.
From the moneys appropriated for the use and purposes of the said department, the State Treasurer shall annually deduct such an amount as shall be necessary to pay the interest on all bonds issued under the provisions of this Act, and such money so deducted shall be so used by the State Treasurer. The State Treasurer shall also annually deduct from said moneys so appropriated an amount equivalent to two and one-half per centum of the amount of said bonds so issued under the provisions of this Act, which said last mentioned amount so deducted shall be paid into the sinking fund of the State for the liquidation of the principal debt of said bonds.
Section 15. The said department shall upward of thirty days before the thirty-first day of December of each year prepare a budget for the next succeeding year. It shall estimate the probable amount of revenue which it will have for its use during such succeeding year from all sources, basing its estimate upon the revenues and experiences of the year during which the budget shall be made, provided, that in the budget for the year 1918 the estimate shall be based upon all the moneys received by the State Treasurer under said Sections 197, 199, and 201 of Chapter 6 for the registration of motor vehicles and the licensing of the operators thereof for and during the year 1917 reasonable allowance being made for any increase in the fees charged under said sections for the year 1918 over those charged for the year 1917, and provided that moneys appropriated for the use of the department by an act entitled, "An Act to appropriate the moneys raised by an act entitled, 'An Act to Amend Chapter 6 of the Revised Code of the State of Delaware, by Providing for an Income Tax,' and the Moneys raised by an Act entitled, 'An Act to amend Chapter 6 of the Revised Code of Delaware, 1915, Relating to the Inheritance Tax'" and collectible during the year 1918, shall not be included in any budget as a basis for an issue of bonds. It shall estimate the probable cost of maintenance of its organization, such as the salaries of its regular and usual employees, its offices and the expenses thereof, and such other expenses as are commonly known as overhead expenses; and the fixed charges, if any, of any State highways constructed or reconstructed from the proceeds of bonds issued under the provisions of this Act, itemized; and the estimated costs of maintenance of any State highways which have not been constructed or reconstructed from the proceeds of such bonds. If there is any excess of revenue for such succeeding year, estimated as aforesaid, the said department may proceed to ascertain what amount of money, if any, such excess of revenue will warrant being borrowed for the construction *of [*or] reconstruction of State highways. No amount shall be borrowed greater than an amount upon which such excess of revenue will pay the fixed charges on such highways as it is proposed to construct or reconstruct from the proceeds of bonds proposed to be issued. If it should be found that such excess of revenue warrants the borrowing of any money, and the budget is certified to by a certified public accountant selected by the department and approved by the Auditor of Accounts, the said department shall certify to the Governor, the Secretary of State and State Treasurer, the said budget and the certification of such accountant and the amount which said excess of revenue shall warrant to be borrowed, and the said Governor, Secretary of State and State Treasurer shall, and they are hereby, authorized and directed to sell, execute and deliver bonds in conformity with the provisions of this Act, to an amount so certified by the department as warranted to be borrowed, upon the further request of said department that bonds to such amount be sold.
If, at the end of any year there are any moneys resulting from annual appropriations unexpended and to the credit of the department, it may use such moneys for any of the purposes of this Act, but it shall not include the amounts of such moneys in ascertaining the excess of revenue in its budget.
Section 16. The bonds issued under the authority of this Act, shall be in denominations of one hundred ($100.00) dollars, or multiple thereof, as shall be decided by the Governor, Secretary of State and State Treasurer or a majority of them, with coupons thereto attached for each half year's interest thereon. The said bonds shall be numbered consecutively, and shall be dated the first day of January of that year in which they shall be requested to be sold by the department in accordance with the provisions of Section 13 hereof. They shall bear interest from and after that date at a rate not exceeding four and one-half (4 1/2) per centum per annum, interest payable semi-annually, on the first day of January and July in each year which such bonds remain unpaid, at the Farmers' Bank of the State of Delaware, at Dover, upon presentation of a coupon representing such semi-annual interest.
The principal of said bonds shall be payable at said bank forty years after the date thereof on presentation and surrender of said bonds, but the said bonds or any of them may be redeemed at the option of the State at the rate of one hundred and five per centum of the principal debt of the bond redeemed on any first day of January or first day of July after the said bond or any of them shall have been issued one year, upon thirty days' notice published in one newspaper in the City of Philadelphia, and one newspaper published in the State of Delaware, indicating by their numbers the bonds thereby called and elected to be redeemed.
The said bonds shall be signed by the Governor, Secretary of State, and State Treasurer on behalf of the State of Delaware, and shall have the Great Seal of the State impressed thereon.
The signature of the said Treasurer shall be engraved, printed or written on such coupon, and when printed or engraved shall have the same effect as if written, and the coupon attached to each bond shall be numbered consecutively, and bear the number of the bond to which it is attached to identify it therewith.
Section 17. The said bonds shall be in the following form, to wit:
United States of America
State of Delaware.
No. ____________ State Highway Loan of 19___
These presents certify and make known that the State of Delaware is held and firmly bound unto the bearer in the sum of ________________________ Dollars ($_______), lawful money of the United States of America, which the said State promises and binds itself to pay to the bearer at the Farmers Bank of the State of Delaware, at Dover, on the first day of January, A. D. 19_____, with interest at the rate of _________ per centum, per annum, likewise payable at the Farmers Bank of the State of Delaware, at Dover, on the first days of January and July of each and every year, while the said principal sum remains unpaid, upon the presentation of the coupon as hereto annexed representing such semi-annual installments of interest, provided, however, and it is expressly stipulated, that the said State reserves the right and power at its option to call in, pay and redeem this bond at the rate of one hundred and five per centum of the principal debt hereof on the first day of January and July in or after the year A.D. 19___, pursuant to the notice in that behalf prescribed by an Act of the General Assembly under authority of which this bond is issued; and provided further, that when this bond shall be called by the notice aforesaid, interest hereon shall cease to accrue from and after the first day of January or July (as the case may be) next succeeding the date of such notice.
Dated at Dover the first day of January, A. D. 19_____
Witnesseth the Great Seal of the State of Delaware, and the hands of the Governor, Secretary of State and State Treasurer, the day and year aforesaid.
_______________________
Governor.
_______________________
Secretary of State.
_______________________
State Treasurer.
And the coupons shall be in the following form, to wit: No. _____________
The State of Delaware will pay to the bearer at the Farmers' Bank of the State of Delaware, at Dover, on the first day of _______, A. D., the sum of Dollars, for six months' interest on bond No. State Highway Loan of 19_____
Dated July 1st, 19_____
______________________
State Treasurer.
It shall be the duty of the State Treasurer to provide a record of the proper size and form to be retained in his office so ruled as to afford a separate space for each coupon and the space at the top of each page of said record for each bond when paid, and each space at the top of said record shall bear the same number as the bond, the record whereof is intended to be preserved. As the said coupons are paid, it shall be the duty of the State Treasurer to mark the same in red ink across the face "Paid," cut each of them in two lengthwise, paste the piece in the aforesaid spaces for each coupon in the record aforesaid, and as the said bonds shall be paid and redeemed the State Treasurer shall cause the same to be cancelled by making lines with red ink through the signatures of the Governor, Secretary of State and State Treasurer, also by writing across the face thereof, in red ink, the word "This bond paid and redeemed this __________ day of ________ A.D.______"
_____________________
State Treasurer.
When paid and redeemed the said bonds shall be pasted in the proper spaces aforesaid.
Section 18. The public faith of the State of Delaware is hereby expressly pledged for the full and complete payment of the debt, principal and interest, by this Act authorized and the bonds hereby authorized to be issued and the coupons thereto attached and the said bonds shall be exempt from taxation by the State or any political subdivision thereof for any purpose. The State Treasurer is hereby authorized and directed to cause all blanks in the form of the said bonds and the coupons to be appropriately filled in.
Upon sale and delivery of any State highway bond for which provision is made in this Act to the purchaser thereof, the certification of the budget and the amount of money warranted to be borrowed by the excess of revenue and the request for the sale of bonds to such amount made by the said department, as provided in Section 15 hereof, shall be conclusive upon the State of Delaware arid all and every other person whatsoever of the right, power and authority for the issuance of said bonds and the legality and validity of such bonds and of the principal debt and interest represented thereby, and the legality and validity of such bonds thereafter shall never be questioned in any court of law or equity by the State of Delaware or any person or persons for its use or in its behalf, and this provision shall be and become part of the contract and obligation represented by said bond.
Section 19. Whenever the department shall in conformity with Section 15 of this Act request the issuance of bonds, the Governor, Secretary of State and the State Treasurer of this State, or the majority of them are hereby authorized and directed to sell to the amount so certified and requested by said department, and to this end, the Governor, Secretary of State and the State Treasurer of this State are hereby directed to advertise twice a week for four successive weeks in such newspapers and journals in and out of the State as in their judgment may be conducive to the sale of said bonds, that they will receive bids at such place or places that may be named in said advertisement for such bonds under such regulations as may be made in the discretion of the Governor, Secretary of State and State Treasurer, and the accrued interest between the date of the bonds and the time of sale and delivery of and payment of said bonds shall be adjusted with the purchaser thereof under such regulations as may be made in the discretion of the Governor, Secretary of State and State Treasurer, provided that any overdue coupons attached to the bonds shall before the sale of said bonds, be detached and canceled in accordance with the provisions of this Act, and upon the day mentioned in said advertisement as the day for opening of the bids for said bonds, the said Governor, Secretary of State and State Treasurer, or majority of them, shall receive such bids for the purchase of all or such number of the bonds designated in said advertisement to be sold, and on opening of said bids, as many of said bonds as shall have been bid for, shall be awarded by the said Governor, Secretary of State and State Treasurer, to the highest responsible bidder or bidders therefor, for cash, provided, the amount bidden is adequate in the judgment of the Governor, Secretary of State and State Treasurer, or majority of them. If two or more bidders have made the same bid and such bid is the highest, and the bonds so bid for by the highest responsible bidders are in excess of the whole amount of the bonds so offered for sale, such bonds shall be awarded to such highest responsible bidders bidding the same price in a ratable proportion. If any of said bonds so offered for sale are not bid for, or if any insufficient price be bid for them, they may be subsequently disposed of under the direction of the Governor, Secretary of State and State Treasurer at private sale upon the best terms they can obtain for the same, provided, that they shall not be sold at private sale for less than par and accrued interest.
Section 20. The State Treasurer, upon the receipts of any money appropriated to the department, shall credit the department with such amount and such money shall be kept in a separate fund for the use of the department, and any money received from the sale of bonds issued under the provisions of this Act shall be placed to the credit of the department for the construction or reconstruction of State highways and kept in a separate fund.
The State Treasurer is hereby authorized and directed to disburse moneys in the State Treasury to the credit of the department upon its warrants signed by the Chairman and the Secretary or the chief engineer, stating the use of the moneys for which such warrant calls and in accordance with the provisions of Section 20, of Chapter 15, of the Revised Code, provided that no funds resulting from the sale of bonds herein provided for shall be expended or used except for the construction or reconstruction of the State highways as aforesaid, nor for the construction of any reconstructed highway unless there has been a net saving of reconstruction equivalent to the original cost of reconstruction.
Approved April 2, A. D. 1917.