Evening journal., 1921-10-13
Today's News Today

advertising, or in what manner. or
when, is not provided. II the ordi-
nance OF 1853 may be said In any,
wise to affect or relate to the one
OF 1870, the most that can be said
is that the former was meant TO sup
plement the latter by comforting on
committee OF the council the auth
ority to determine the detailed man
ner in which the publicity required
in the ordinance OF 1870 should be
secured. But I am not called upon
to decide whether the ordinance Of
1883 does in fact affect the one Of
1870. II II does It is clear that Il
does not do so to the extent OF a re-
peal.
(b) II is further contended by
the defendants that one City Coun-
ell. by the passage of an ordinance
requiring that bids be publicly in
vited, cannot thereby bind another
City Council elected after the expir-
alton OF the terms OF the members
who passed such ordinance. Bunk
er vs.. City OF Hutchinso, (Kan.) 81
Pac. SS5, and certain obiter dicta in
Keogh v. Mayor. Sc. OF Wilmington,
Del. Ch. 491, are cited in support
OF this proposition.
II the principle thus contended
for be fully conceded, the court Is
not aided thereby in determining
this particular motion, for, in this
case II was not The Council, the law
making body for the city, that un-
dertook TO purchase the fire hose,
trucks and engines in question, Ii
was the Department OF Public Safety.
Had It been The Council that dis
regarded the ordinance, then the
principle contended for under this
head would be pertinent
Co II is further contended that
the Department OF Public Safety was
not required TO observe the require
ments OF the ordinance OF 1870, be-
cause the language OF section 8 OF
the Act Of the General Assembly
tChap. 10 Vol. 80, Laws OF Della
ware) indicates that it was the in
tention Of the General Assembly OF
the State to authorize the Depart
ment TO acquire such property as is
here involved at such prices and in
such manner as Il saw NJ IN the ex-
ercise Of its discretion. and that
therefore the ordinance requiring
that bids be publicly invited and
awarded to the lowest bidder is not
binding on the Department.
This contention rests on the prop
ositon that the legislative power
OF the municipality OF Wilmington,
expressing itself through The Coun-
Gil is inferior and subordinate 10 the
legislative power OF the state, whose
creature il is. This proposition is,
OF course. beyond dispute.
The only question that calls for
consideration deals not with the cor
rectness OF the principle, but with
its applicability, and this in turn in
wolves a construction OF the legis-
lative language employed In the sec
ton referred TO. II uRder a proper
construction Of said section It ap-
pears to have been the legislative
intent that the matter of purchasing
fire equipment, the price to be paid
therefore. the manner OF purchase,
&c, were vested in the discretion OF
the Department Of Public Safety
then an ordinance Of the city limit.
ing the right to purchase to .hos'
cases only where a lowest bidder
has been ascertained after a public
inviting OF bids. must give way
For II there be conflict between tn
statute and the ordinance, the statute
prevails.
Is there such conflict in this case
Before answering this question, D
will not be out OF place for me tS
mention that when this matter wa
before the court at the prior hear.
ing. the particular view OF It now
presented was not mentioned, or II
It was. It was so cursorily referred
10 as to entirely escape attention
the argument then being that sec
tion OF the Act was OF such ma.
J ture as 20 indicate the legislative in
tent that the ordinance was not ye
operative on the Department, bu
, only so when the Department shall
b have become fully established; tina
Is TO say. at a future time. Sectioi
8 and its signihcace in connection
. with the point now being discussed
was neither urged In the argument
nor noticed In the opinion.
on the pending motion TO dissolv
/, the preliminary injunction. the poin
is now urged. that by reason OF tn
language OF section s, the competi
p tive bid ordinance must be held q
' be inapplicsble TO the contracts 10
a the purchase OF FIRE hose. engine
a and trucks There Is nothing in tn
3, prior opinion that holds against thl
l. contention; and. even II there were
e the court ought not 10 hesitate {
%. refuse TO adhere thereto H. on fur
ther consideration, there should ar
pear TO have been an error OF viev
now recur 10 the question befor
me. viz; is there anything In Sec
ton s OF the Act OF the General Al
sembly creating the Department
public Safety which indicates an n
tent to vest full discretion In the ID
partment 10 make such contrac
as those IN question. free from n
restraints imposed upon officers
the city by the ordinance OF 1870?
The ordinance forbids officers an
committees to make contracts Il
the city unless sealed proposals Il
the same are publicly invited ar
the contracts given 20 the lowe
bidder or bidders. Section OF n
Act approved March 1s, 1921, pr
vides as follows:
Section s. Taht on and af-
ter the first day OF May. A. ID.
1921. The Mayor and Council
OF Wilmington is hereby auth
orized and empowered through
the agency OF the Department
OF Public Safety hereby creat-
ed. constituted and appointed.