Evening journal., 1896-01-18
MILK MEN ARE VICTORS.
The City Cannot Compel
Them to Pay License Fees.
MUST REFUND FRss ALREADY PAID

MUbl hbf UhD thhb ALhbAD1 fAlD
chief Justice Lore Handed Down a DE-
clsion This Morning Which Settled
the Question Christopher l.. Ward
and wiIIism s. Hnles Rest Easy on
Honors.
The milk dealers have triumphed
against the municipality In the Superior
Curt on the test case. Certlorsred
from the Municipal Court and in which
Tbomas Gray volunteered to become the
defendant below sno plaintiff above
This morning OK City Solicitor George
A. Elliott, representing the city, and ex
City Solicitor William T. Lyman aud II.
n. Ward, attorneys for the milk dealers
association assembled In the Superior
Court room to hear the decision which
WAS prepared last evening. Chief Justice
Lore delivered Il, as follows:
The excsptisn relied upon 10 that there
vas no authority vested by the charter
81 Wilmington in the City Council 10
impose or require licsnso from persons
Engaged In the milk trade The suthor-
ity vestsd 10 The City Council by the city
charter is IN wsrds which form a distinct
and Independent sentsncs:
This act provides sgAinst the adultera-
tlon Of milk or cream told, or bought to
be sold in the said city, and TO provide
for the proper inspection OF the same
That Is oil that wo fad or that has
been shown Ia the charter relating to
the subjsct. and IL confines the rlghd OF
the City Council to provide against
adulterRtion and for proper inspection
u. = 81 f..f .
bsen shown, that the right TO demand p
license Is IN any way necessary part Of
that power. IL certainly Is not
expressly granted nor eau we
see bow, by any necessary implies
tion, that power could be implied Ia
fact, wo think that right on tho face Of
the ordinance, II shows that It Is not
necessary, and unless expressed, We shall
therefore have TO difcharge IT. because
the entire machinery for the inspection
OF the milk and for preventing its sduit
eratlon as to all persons selling less than
twenty quarts is admitted to be provided
for. Therefors, on the face Of the erdi-
nance, it shows that It is not necessary
Ia erder fer us to say It Is necessary, Il
ougkt to be either express or by necessary
Implication. We think 10 Is not either.
Then there Ia this further provision:
Here Is q general ordinances fer an entire
class Of people, which licenses those OF
them who sell moro thsn twenty quarts
and sxempts those vhs SOL less than
twenty quarts. Sectisn 81 sAys. "Ths
Council shall not have power to lPsss any
ordinHncs exsmptirg any person from
the operation of any Ordlnaee or nunioi
pal regulation AZ Judge Cullen
suggests, It does net appear that th7rs
was any express pawer to license, aud
says 50 in so many words You can not
criminato. We think both Judgments
ought TO be reversed and so order.
This means that milk dealers csnnot
be compelled to pay license fees, and
that the money paid IN by milkmen will
have to be refunded.
Ia tho matter Of the rules to show
cause Why tAe writs in the cases OF Isldor
Nicholson VS. e z. Hanf and Marx Vsit
& Co VS. the same, should not be
quashed on account OF misnomsr, the
court handed down a decision. De.
fendant's name appeared as "E Edwin
HAnf," whereas IL was alleged by de
fendant's attorney, William q Hilles. that
IL should have been EMIL K Hanf,
Christopher L. Ward, representing
the plaintiffs, took the ground that the
nane "E Edwin" was the enc defendant
commonly used, and the one under
which he had traded. The court sus
taIned Mr. Ward. and refused to qussh
the writs. The cases will be tried in
May.
Ia the case Of the Tubular Rlvet fand
Stud Company VS. the Delaware Hard
Fibre Comoany. Christopher L Ward
moved for Judgment fer want OF am iavit
Of defense. on the ground that the
paper fled by William 5. Hillss, attorney
had ct out the nRms 81 the plaintiff as
tho Tubular Rlvst and Steel Company
Court refused the application on the
ground that, while the plaintiff WAS
misnamed. the case was sufficiently
Indicated in the heading Of the affidavit
o. defense.
rhis ended the business OF the session
aud court adjourned until February g.