Evening journal., 1916-11-28
GARAGE ORDINANCE
Invalid SAYS Court
Chancellor Holds it is Dele
cation of Legislative
Power TO Property
Owners
CONNOR WINS SUIT
AGAINST CITY

Chancellor Curtis today filed an
opinion In the Court Of Chancery in
me case of David Dangel and Edward
WISH against Albert Williams. Arthur
johnson, James Kane. John McDon-
ough and Burton Heal, members of the
Public Building Committee of the
Council OF Wilmington; Ellis p. Pres
ton, Building Inspector OF the city Of
Wilmington, and Edward +. Connor. in
which it is determined that the ordi-
nance passed by City Council on June
20, 1914. prohibiting the erection of
public garages in residential sections
Of the city, is invalid.
Edward +. ConnOr, one of the de-
PENDANTS, applied to the Building In
spector for a permit to erect a public
garage on lot on DUPONT street, be-
tween Fourth and Fifth streets, ad-
joining land of the complainants. The
inspector, acting under the provisions
Of the ordinance, refused the permit.
ConnOr appealed to the Public Build
ing Committee Of City Council for in
structions to the building inspector to
issue the permit, but before the matter
was determined by the committee.
Wilbur L. Adams, Esq. on behalf of
the complainants, filed an injunction
bill to restrain further proceedings by
the building committee. and rule
was issued requiring the defendants to
show cause why preliminary injunc-
ton should not be issued to restrain
the issuance of the permit
The bill alleged that the lots of both
the complainants and defendant. Con-
nor. were within the residential sec
tion of the city.
The ordinance referred to reads as
follows
Section /. That no permit shall
hereafter be granted for the erection
OF alteration of any building intended
for use as a public garage in the resi-
dence portion of the city of Whining
ton. within forty feet OF the building
line of any and all adjoining property
owners. unless the written consent Of
all such adjoining owners has been
filed with the Building INSPECTOR"
At a hearing of a rule TO show
cause why a preliminary injunction
should not be issued. testimony was
heard as to whether the lands in ques-
tion were located in the residence
section Of the city Pending a decision
OF the question the defendant, Connor.
by Robert c. Harman. his solicitor, de-
INJURED generally to the bill for want
of equity, and in the argument at
tackled the validity OF the ordinance as
unreasonable. discriminatory and un-
warranted by law. in that it delegates
70 adjoining property owners the
power to decide whether such a
building should be erected. The COM
Dlainant urged that the ordinance is
not a delegation OF legislative power.
but is an enactment bv Council OF
prohibition of public garages in the
residence portion of the cifv and that
il enables the adjoining owners to
waive their rights to enforce the ordi-
nance so as to permit the erection OF
a garage within forty feet OF their
land.
The chancellor held that the ordinance
was delegation Of legislative power to
the adjoining owners; that by it AM
owner Of land may be restricted in n
proper use Of his land, for n particular
purpose by his failure to obtain the con-
sent of his neighbor, either because of
the arbitrary will, or caprice of his
neighbor, or because he is inaccessible
or hostile, or for any reason Indifferent;
that the adjoining owner and not the
Council makes the ordinance effective
that the liberty TO erect the garage isl
granted or withheld not by the city. or
any Of its officers, but by some one or
more Of the owners of property adioin- |
ing the land on which the garage is to bc I
erected: and that this is unrea soma ble 4
and an unwarranted delegation of leg
islative power; and that the ordinance
is, therefore, invalid.