Evening journal., 1913-09-24


Churchman handed down decision
in the cases of owen j. Brady. Joseph |
S. Hamilton. John McCloskey and
William NJ. Connolly, contractors,
charged with violating resolution
of the Street and Sewer Department
in laying cement payements and
brick sidewalks while not having
permit from the department While
the decision found all guilty, sentence
was not imposed. the Court stating
that the fine fixed by the resolution
was both unreasonable and eXces-
sive.
In his decision in the cases Judge
Churchman went thoroughly into the
testimony of the cases as heard last
week and in the course of his decision
he said the method by which the fne
i'm such cases was provided was OBJ
iectionable and was most eXtraor-
binary. novel and startling. Ihe
Court also quoted that section OF the
Constitution of Delaware in the BIZ
of Rights (Article 1, Section III
which provides as follows: Excess
sive bail shall not be required nor eN-
cessive fines imposed, nor cruel pun
ishment inflicted"
There we're two charges against Mr..
Brady aud one against the others ana
ON one charge Mr.. Brady was dismiss
ed Mr.. Hamilton pleaded guilty 10
the charge. The fine imposed by the
resolution is 81 for each square yard
of payement laid without permit.
When the case was heard on Wednes-
dav of last week. Judge Churchmah
declared the fines were unjust.
In his decision today Judge
Churcbman asked. is the fine pre-
scribed in this resolution excessive
find the general doctrine TO De
Thai courts will not interfere with the
legislative discretion. unless the Ine
ia flagrantly disproporuoned ic tns
offcn5o. such, If imposed as Wouiu
shock tho sense of mankind.
In conclusion. the court said am
cloar that this is such a fine Tor IN the
hearing of the cases when the INT
reached i'm one of the cases the sum
of st25. I was very mucch shocked M -
tbink that | was asked to impose sucn
fine upcn a man for the mere failuIt
IN take out a permit to do the WoIh
For the peasOns given ! am cleaIly VI
tho oninion that the resolution Is IN
vald so far as section Thereon i'
concorned The three defendants
, Rradv McClosky and Connolly mus
he adiudeed guilty and the penait'
in All of. the cases will not be impos
cd for the reason that the ihe Is uii
reasonable and excessive.
THO opiniom handed down by Juoe'
/ Churchman follows. a
"The defendants we're charged
with violating section 3 OF resoiu
. ltion of the Street and Sewer Depait
mont entitled: A resolution proNlu
linr regulations to govern the con.
struction of cement sidewalks ano
cement concrete curb, within tn'
limits of the city of Wilmington
nclaware' adopted March %, lsOs
and amended August 20 1911 am
January 25 1913, which Teaus 81
D. follows. s.
Section 1. That from and aiteI
the passage Of this resolution an
r new sidewalks to be laid on the
, streets of the city of Whining
z ton. i'm front of property where
/ ON Is erected any dwelling house
4 ~ office. place OF business, ralhnF'
K fence. stone or brick wall, or
rermanent structure of any kind'
shall be of Portland cement con
?. crete. and the repairing. renewing
a or altering OF any and All sac
walks constructed and laid on
3. the streets of the city Of Whining
T, ton al the time Of the passage OF
this resolution. when the repairs
/. renewals or alterations require
l. the use or removal Of az least
two-thirds (2-3l of the material
3. composing the surface of the side
q walks to be repaired, renewed
or altered. shall be repaired, re-
e newed or altered by laying a
r Portland cement concrete side
5 walk. and all Portland cement
a concrete sidewalks shall be con-
d structed i'm accordance with spe-
cifications and plans approved by
l. the Street and Sewer Depart
: ment.
N Provided. however. that the
m BOARD of Directors of the Street
and Sewer Department. may, at
lu their discretion. and if the cir
az cumstances warrant. permit the
r laying of brick sidewalks at To-
. cations where cement concrete
1e sidewalks may be impracticable
I" in the opinion of the said Board
D. of Directors on account of inter-
ference with the growth and sus-
.e tenance of trees now planted for
H. shade and ornamental purposes
I, on the public sidewalks. and in
j.. everv such case, the written per-
mission of said Board of Direc-
- tors of the Street and Sewer De-
- partment must be obtained.
Section ,. Cement concrete curb
- may be constructed only upon ap.
> plication TO and by the approval OF
the street and Sewer Department
20 and upon approval Of the Street
m and Sewer Department of any sucl
application. q certificate TO that ei
m feet shall be ISSUED to the chiei
re engineer and surveyor by the street
commissioner. The applicant shal
20, conform to all rules and regula
al tions of the Department OF Engi
as neering and Surveying relating e
nd' the setting of curb
Section 3. The construction o
sit all such sidewalk and curb shall b.
subject to the supervision and ap
proyal of the street commissioner
Whenever sidewalk is to b
laid. repaired, renewed or alterS
m hermit therefor shall be issue'
III bv the street commissioner withou
charne upon application of the own
roo Or or owners of property buttinI
sidewalk TO be laid, repaired. re
ING newed or altered. a. upon the appli
is cation of the agent OF contraeto