Every evening, Wilmington daily commercial. (Wilmington, Del.) 1878-1928, 1906-01-09

City Solicitor Townsend today sent the
following opinion, ON the subject of dis
posal of garbage. 10 Secretary Hamann of
the Board of Health, the latter body and
City Council having asked for an interpre-
tatlon OF the law on the subject in order
TO determine Whether the authority to
take charge of the work lies with Council
or the Board of HEALTH
Wilmington, Dell Jan. 9th, 1906.
William L. Hamann, Esq, Secretary
Bond of Health, City.
Dear Sir: The Board of Health has
been asked for my opinion "as to the
boards right to dispose Of garbage col
lected in the city"
ln reply, will state that I am of opinion
that the Board of Health is required, and
IL is the duty of said board, to see that
all garbage is collected, removed and dis
posed of in such manner as will tend TO
preserve the public health. 1t should re-
ccive complaints concerning garbage and
should give its attention to the failure
TO properly care for, remove or dispose of
the same, And it is its duty also to sec
that all ordinances and State laws re-
latiug to matters of public health within
said city are enforced and that viola
tions thereof are prosecuted. In other
words, the powers of the board are con-
fined strictly to police powers except
where otherwise expressly extended.
] am satisfied, however, not only that
said board has no authority TO award
contracts relative TO the disposition of
garbage but also that it has nothing
whatever 10 do with the awarding of
contracts relating TO the collection and
removal of garbage" and this opinion
will therefore concern all such contracts.
There are numerous reasons why said
board now has no such power, certain of
which follow.
I'D There is in force, the ordinance
| of June oath, 1897, known as the "Crema-
tory Ordinance which provides in sub
stance that Council shall have charge Of
the disposition of garbage, and award
contracts incident thereto.
There is also in force the ordinance of
December l4th 1899, which provides that
| Council shall have entire supervision and
control of the collection and removal OF
garbage within the city, and shall award
contracts for such collection and removal
TO the lowest and best bidder
These ordinances have been duly passed
upon by former city solicitors, enacted
into law by the legislative body of the
city, duly approved by former mayors
| and are therefore presumed to be valid
! Ordinances bear the same relation to the
/ city charter that acts of the Legislature
! do Go the Constitution, and as all courts
are reluctant 20 declare that statutes are
/ In violation of the Constitution, except
when such violation Is clearly and with
out doubt apparent. q city solicitor whose
power is certainly less than that of the
courts, should, for the same reason, but
with greater caution, hesitate TO declare
that ordinances are contrary to charter
| provisions.
/ have examined section 1877 of the city
charter wherein certain powers relating
TO matters of public health are given Ia
the Board of Health, and section 81
where powers of a like nature are vested
| IN Council, aud am satisfied from such
examination, that the ordinances abov,
noted are consistent with section 81, but
! am not satisfied that they are incon,
sistent with section 1877; and therefore
I shall hold that the above ordinances
control the awarding of garbage con
tracts
To strengthen such conclusion, I woult
call attention to the fact that section.
81 and l37 were enacted by the Legisla
ture ON April 18th. 1888, and that City
Council over since that date, has con
trollcd the awarding of all contracts fol
the collection. removal and disposition O
garbage either directly, or by virtue O.
ordinance by which Council authorize,
the Board of Health 10 make such con
tracts. ln fact Council has controlle,
such matters ever since the ordinance o.
1872
I'm 1892, Council passed an ordinance
giving the Board Of Health authority {,
award contracts for the collection and re
moval of garbage. and such authority re
manned In such board until restored q
Council hy the ordinance of 1899. There
fore, although the Board of Heatl
awarded contracts for seven years, il di
so-not hy virtue of section l37-but b.
reason of the authority granted to it b.
Council In the ordinance of 1892; an
Council passed that ordinance by virtu
of the authority In it vested by sectioi
81.
II is therefore clear that section 81 ha
been recognized as the law applicable Z
such matters since 1888.
The fact that Council, acting upon tn
opinion of City Solicitor Hartman to tn
effect that the Board of Health had mr
isdiction over the collection and re
moval' OF garbage, passed a resolution
pursuant TO which certain garbage con
tracts and other papers were turned owe
to the Board of Health, does not chang
the situation.
Council could have repealed the ord
nance of 1900, but passed a resolutio
instead. An ordinance cannot be repeale
by a resolution unless the resolution
passed with the precise formality re
Quisite to the enactment or repeal of a
ordinance. ] fully appreciate the legs
ability of Mr.. Harman but ] also apprs
eiate the fact that every city solicito
who has approved any garbage contrng
or ordinance since the city charter q
1855. has by such approval recognize
that Council controlled such matters
(2l The Board Of Health has no re,
cnuc. or source of, on control over SUI
icicnt revenue TO authorize il 60 max
contracts concerning the collection or a..
position of garbage, and In no part q
the city charter is il given power I
award such contracts, unless SO author
lied by Council.
A comparison of the acts creating oths
city departments of that portion Of N
city charter comforting powers on IN
Board of Health. shows plainly that n
powers Of said bcard are limited. III