Every evening, Wilmington daily commercial., 1906-05-19
CAN BUILD PORCHES.
icnn.ln..ea nm ..snna no. 1

icontinued from second pogei
Sewer Department by a mere resolution
introduced and adopted at one Of the
same meetings, repeal an ordinance of the
city or must the repeal, in order to be
effective, be done IN accordance with
section 30 OF the city charter The de-
iondants' attorney has advanced four
reasons why the resolution is void They
arc: () That Il Is contrary to law 10
repeal an ordinance 10y a mere resolution,
and he quotes in support of this as follows
from McQuillan ON ordinances: "kepeal
of Ordinance by Ordinance Only" An
ordinance can be repealed only by ordi-
nance and not by resolution, or order
a motion of the Legislature or governing
body, not passed and published with the
same fomality as an ordinance.
Section 8 OF the Street and Sewer act
merely gave the power to repeal orii-
nancos. but IL did not give the power TO
do It IN a way different from the manner
prescribed hy section 80 of the charter
and as the charter is in full force and effect
except where Il is expressly or by neocs-
say implication repealed, then section 30
is in force and applies to the Street and
Sewer Department as well as to the
Council The act creating tho dopart-
mont merely transferred to that body the
same power that the Council formerly
possessed over the Streets and as the
Councils power TO repeal ordinances
affecting streets is limited TO what is con-
tanned IN section 30 OF the charter. 30 is Il
with the Street and Sewer Department
In support Of this contention he eiers
10 sections and Of the act creating the
department Section 4 says that the
Street and Sewer Department SHALL (a)
''Stand in the same position as is now
occupied by the Council and shall: o.
" BE substituted FOR the Council and
shall have. (c) The same rights, powers,
privileges and authority az were, before
the passage Of this act, vested in tho
Council
This language makes Il clear, he con-
tends. that the Street and Sewer Depart
ment was 20 have simply the samo powers
that Council formerly possessed over the
streets, &C, whether that power con-
sisted in the right 10 open a street, widen
street. pave a street, regulate tho use
of a street or to repeal ordinances relating
20 opening, widening. paving or regulating
streets. &c, and section of the act empha-
sizes the point for il says that tho depart
meni shall "llavo the same rights and
powers and be vested with the same
authority (oi streets, &c) as are now
held and exercised by the Council Of said
city OF Wilmington, under the charter
laws, ordinances and regulations apper-
tanning to or in any manner made for the
government of said city"
The department, therefore, has only
the powers the Council had under the
charter, &c Now the power the Council
had under the charter, as to repeating
ordinances, is contained in section 30 oI
the charter, and the Street and Sewer
Department having but the same powers
and these "under the charter" must 10
peal ordinances In accordance with sector
80 of the charter. This clearly refers e
the repeating Of ordinances relating Il
streets for the language is "the same
/ powers the Council had under the charter
in any manner made for the government
Of said city"
And the repeal Of ordinances Is matter
| that vitally concerns the government ol
said city" The defendants counsel also
advanced the reason that It would be con
trary 20 public policy to permit the depart
ment to repeal ordinances in the abov,
manner. The Council, before il can 70
peal an ordinance, must give notice to thl
public one meeting ahead of time, of IL
intentions so 10 do, and thereby inform
the people and give them a chance 10 b
heard on the matter, If they so desire
Why, therefore, (unless the language o.
the act be perfectly clear should th,
Street and Sewer Department, a body
inferior 10 the Council, be permitted e
repeal ordinances Of the city, practically
in secret session and without any notice
10 the public Why should the depart
ment, without any previous notice at Q
meeting, be permitted 10 introduce q
resolution and within five minutes after
wards adopt it orrepealing an ordinance
of the city, ,of vital Importance perhaps
to the people and property owners, anc
they know nothing of it until il would bl
too late 20 protest OF be given a hearing
Unless the act in clear language authorizes
this 70 be done, it should not be done iol
the reasons heretofore advanced.
The court is of the opinion that IN,
above resolution is void and the above
mentioned ordinance, being In full force
It permitting porches tobe built four feet
from the building line, the defendant
had a right 20 erect said porches as afore
said, and the cases are, therefore, dis
missed.
After Judge Cochran had handed dow
his decision, at the request OF Assistan
City Solicitor Rice, the cases agains
John l.. Healey and Michael H. McEvilly
also charged with violating the porcl
resolution, were dismissed.