Evening journal., 1913-10-28
QUESTION WHETHER COUNCIL OR
STREET BOARD HAS JURISDICTION

Judge Churchman in the City
Court in dismissing the charge of
violating the market regulations
against Councilman Jacob thinner
mann pointed out Gus Weakness
in the market laws that will require
new legislation by City Council or
Street and Sewer Directors and by
the Legislature to correct. The
Judge at the same time dismissed
the charge Of violating the market
regulations against Michael Palese.
zimmerman was accused of occu-
pying a market space without being
a farmer or trucker and OF offering
for sale tripe and sauer kraut that
we're not products OF his farm. It was
shown at the hearing that he had
paid $3.50 license for his market
space and that Il never had been re-
turned to him.
Judge Churchman's decision covers
forty-seven typewritten pages. II re-
views Of the legal phase OF the public
market question from the time Noi
the original charter OF the borough
OF Wilmington, November 16. 1888
down TO date.
The judge points out that the sup.
Elementary act OF the Legislature OF
1885 does not expressly make IL an
onenso for any person not a farmer
or trucker TO occupy a market space
and no penalty Is provided for per
sons not farmers or truckers who dc
so, although offenses against other
provisions of the statute are made
misdemeanors and punishments are
provided. Judge Churchman rules
that there Is most respectable au-
thority which maintains that a pen
atty must be expressly created and i'm.
posed by statute and cannot be raised
by implication"
Judge Churchman also rules thai
a state or city cannot he estoppe,
from enforcing a criminal. quasi
criminal. or penal law, under a CLAIM
that a certificate issued TO a perso
70 do a lawful thing entities sue
porson TO do an unlawful thin
The Judge holds that the city cou
has jurisdiction in such cases.
Fl Judge Churchman raises a queBtil
Of whether the jurisdiction to reEula
the markets Is vested in City Coun'
or in the Street and Sewer director
who. by statute Of 1857. are given 4
Jurisdiction and control OF the stree
from building line to building I'm
heretofore held by Council TT
! judge says Il is an "open question
whether the statute gives the Sire,
and Sewer directors power 10 legfl
late upon matters concerning wha
might occur on should take place o
the sidewalks and particularly as IA
as the markets are concerned, IN
courts never having had the precis
question before them.
Judge Churchman'S analysis Of th
law leaves the conclusion to many VIII
followed IL that unless there is addi
tional legislation there can be no pun
ishment upon a dealer who is not
farmer OF trucker. who obtains permi
and occupies market space. There /
serious question whether Council OF th
Street and Sewer directors can supply
penalty in the absence of a penalty /
the State statute. II may be that th
entire matter may narrow down to th
Clerk Of the Market refusing permit
or licenses for market spaces 20 an
persons who a"e nv farmers or truck
ers, and then have the next LegislatuI
, strengthen the law
Councilman Slower and others into
ested in enforcing market regulation
said today they could not tell what a
q tion would be taken to try TO cure Il
: defects pointed out
In the litigation Palese was repr
sented by former Congressman Villa
H. Heald. and Zimmerman was repr
sented by Robert G. Harman.
Commenting on Judge Churchmar
/. decision, Mr.. Harman, after court, SAT-
/, at was a very able decision. Il shov