Every evening, Wilmington daily commercial., 1906-05-19

Porches extending four feet in front
of the building line are not in violation
Of law, but are protected by an ordinance
adopted by City Council in 1900, which
is still in force. This was decided by
Judge Edwin r. Cochran, Jr., in the
Municipal Court today, on the ground
that "the Street and Sewer Department
has not the power to pass resolution
repeating an ordinance without giving
notice at previous meeting that the said
ordinance is to be repealed" This was
the decision in the case against John f.
McNabb, who had a hearing a few weeks
ago on the charge of violating a resolution
OF the Street and Sewer Department, by
erecting porch in front of a house. which
porch extended beyond the established
building line OF the city.
When the case was argued Attorney
Robert c. Haman, representing Mr.
McNabb, contended that the ordinance
permitting the erection Of porches and
other distractions beyond the established
building line was not repealed in the
manner laid down by the City Charter,
and, therefore, the rep oaler was void. He
held that no notice TO the effect that the
ordinance was to be repealed was given
at the previous meeting of the Directors
of the Street and Sewer Department. As
a result of this, Judge Cochran decided,
the old ordinance passed in the year 1900,
giving property owners the right to build
porches to their houses, as long as they
did not extend more than four feet from
the building line, is still in force. The
McNabb case was dismissed -
Judge Coohrans decision says:
The defendants Justify their acts bv
virtue of section of an ordinance passed
by the Council May 10th. 1900, allowing
porches TO be built four feet from the
building line The prosecution urges
three reasons for the conviction Of the
defendants. These are:
LIST. That section 5 of the Street and
Sewer act gives that department power
to repeal ordinances, and it repealed the
above ordinance.
ID The charter Of 1882 did not in ex-
press language, continue any ordinances
in force. and the ordinance, with Others.
therefore, ceased 10 be an ordinance after
the year 1882.
Sd. The streets are dedicated to the
public, and encroachments OF no kind
can be made on them except by act Of
the Legislature.
Il is a settled principle of law that the
adoption of a new charter keeps in
force, without express language, all ordi-
nances not inconsistent with il.
The charter Of 1882 by express language
continues in force all laws and ordinaces
not inconsistent with IT, Section l3 Of
charter of 1882, says: "And so much Of
the act, TO which this is a supplement.
and of the laws of this State, as regards
the said borough OF the said fcorporation.
hereby amended or supplied and no more,
shall be and is hereby repealed, made null
and void"
The ordinances, therefore, not incon-
sistent with the new charter, are by ex-
press language kept in force.
The ordinance of 1900 has been ex-
pressly confirmed and continued in force
by various acts Of the Legislature up to
the present day. In the year 1901, the
Legislature passed a law reciting and
setting out in full the said ordinance, and
not only declared II 20 be In full force
and operation, but prohibited the burgesses
from changing il. This ordinance, there
fore, instead Of ceasing to be an ordinance
in 1882, has the unique distinction Of
being kept in force from the year 1901
TO the present time, by acts OF the Legis-
lature.
This answer 10 the contention marked
. also applies with full force to that
marked 3, as the Legislature itself has
by law permitted porches TO be built four
feet from the building line.
This brings us TO a consideration of the
first contention-viz: Can the Street and
Continued on fifth page.l