Evening journal., 1921-11-02
Judge Finds Ban on Street Stands Valid

Under this Section OF the Act. I,
the Street and Sewer Department |
regulates the amount Of space on the |
pavement which the farmers may
occupy. It Will be observed that the
Legislature is silent upon that point.
II the Street and Sewer Department
should prohibit the farmers stand
ing on the street at ALL Il would be
inconsistent with the act OF the Leg
islature. and would, therefore. be
void, because the Act gives him au-
thority TO back his wagon 70 the
curb ard gives him authority to sell
his product on the pavement, and.
therefore, the department must Eive
him a reasonable space on that pave
ment.
THE Street and Sewer Department
may adopt other rules and rogula-
tons not inconsistent with the Act.
THE learned counsel contends
that Section Z gives implied authority
for the erection Of stands next to the
building. That section reads as fol-
lows:
AMaA nN Nti sui nAAhAA NAfNA
or use any stand or other con-
venience for the sale OF any
goods or products OF any kind
in any public curbstone market
between the building lines OF any
street which intersects any street
on which any such market is
held"
Il cannot agree with this conten-
ton. Section is merely further
regulation Of the use OF these mar
kets made by the Legislature itself.
II merely prohibits the erection OF
any stands on. the corners OF King
and Madison streets where inter
sected By othe- streets
The reading Of the Act Of 1917
makes Il clear TO my mind that the
Legislature In the first place intend
ed TO make certain the establish
ment OF farmers and truckers. curb
stone markets on King and Madison
streets under such regulations as
would enable the farmers TO sell
their produce on the streets. SO far
as any other persons were concerned
who desire 20 sell on the streets. the
| discretion was left entirely with the
Street and Sewer Department 30 ef.
fort was made by the Legislature &C
protect the merchant who owned 4
store and wanted 10 display his goodi
on the stand in the street. Indeed
the merchant is not mentioned lt die
not intend, as I see Il, to include hin
or 10 exclude him. but It intended {,
leave II with the agency havinl
charge Of the streets in the City o
Wilmington.
Being satisfied that the genera
Jurisdiction has been given to tn,
street and Sewer Department. ovei
the pavements as well as the streets
and that there is nothing in the Ac
Of 1917 which limits such authorit,
so far as the erection Of stands OIL
the sidewalks is concerned. I an
forced 10 the conclusion that tn
street and Sewer Department ha,
the authority to repeal any ordi
rances formerly passed by 'Th
Council giving authority 10 person
to erect stands on the streets.
THE only remaining question 3
whether or not this particular reso
luton Is reasonable. IL Is, Of course
admitted that all ordinances or resu
iutions, or whatever they may b
, called, enacted by the legislativ
r body OF city. must be REASONABLE,
{ II must also be admitted that ever
a presumption is In favor OF their VI
J. lidity This principle Is laid dow
In 10 Ruling Case Law, at page II
s as follows.
1T IS we'll settled that when
Z an ordinance is passed relating
81 TO matter which Is within the
s legislative power OF the muni-
81 cipality. all presumptions are in
{ favor OF its validity. and when IL
% is attacked the burden Is on the
party alleging its invalldity to
A establish that fact"
ION the following page II says.
/, IAN ordinance IS not unrea-
sonable merely because particu-
lar judges may think il goes
further than Is prudent or neces-
sary or conveniently
= The responsibility is upon IN
Street and Sewer Department wit
respect TO these matters. The cred
or criticism OF the passage OF tn
resolution must be with the deparf
ment I am satisfied that il has M
! acted arbitrarily but has used Il
+, best judgment and could not thin
= Of holding the resolution void upo
any such ground as this.
MY conclusions are that the res,
, y luton. or so much OF Il so refers
this question. is valid. and that a
OF the defendants are, therefor
e guilty"