Every evening, Wilmington daily commercial., 1921-11-02
JUDGE HASTINGS
SUSTAlNS VALIDITY
OF SIDEWALK LAW
Continued from page /.


/ am, therefore. satisfied that the
act creating the Street and Sewer De-
partment makes the department the
only agency In the city that can legie-
late with respect to the streets. the
sidewalks or pavements.
The next important question is
whether or not the act OF 1917, which
was passed for the purpose OF revis-
ing and consolidating the Statutes re-
lating to Curbstone Markets In the
city Of Wilmington. has anything In
II which prohibits the Street and Sewer
Department from regulating those
markets.
Legal Conflict Claimed.
Counsel for the defendant makes
the point that the act OF 1917 gives to
the Street and Sewer Department au-
thority to establish markets. but no
power whatever to regulate the same.
IL seems to me that the, power
to establish market In the absence
OF limitations, OF necessity carries with
1t the power to regulate. l assume this
viii be admitted, but the point that
counsel makes, as / understand Il. In
that the Legislature, so far as King
and Madison streets are concerned.
made its own regulation, and that
as to those two streets the Street
and Sewer Department has no authori-
ty to regulate. Undoubtedly, the regu-
lations laid down by the act of the
Legislature cannot be changed by the
Street and Sewer Department. but.
even as to King and Madison streets
the Street and Sewer Department ha q
been given some authority for the
language used In Section 3, is as fol-
lows.
When such annual sums shall
have been paid as hereinbefore
prescribed, the person paying the
same and receiving the certificate
aforesaid, shall, subject TO all the
provisions of this Act, and subject
TO such other reasonable rules and
regulations as the said Depart
ment, under this Act and not in
consistent. herewith, may pre-
scribe, be entitled TO the free and
uninterrupted use of such spaces
for market purposes as aforesaid.
for the period OF one year from
the hrst day of May as above
stated"
Under this section OF the act. the
Street and Sewer Department regu.
i&tes the amount OF space on the
pavement which the farmers may oc-
cupy. IL will be observed that the
Legislature is silent upon that point
II the Street and Sewer Department
Ah0nld
on the street at all. 1t would be in
consistent with the act of the I.egIs-
iature and would therefore, be. void
because the act gives him authority "a
back his wagon to the curb and gives
him authority to sell his product on
the pavement, and, therefore, the de-
partment must give him a reasonable
space on that pavement.
The Street and Sewer Department
may adopt other rules and regulations
not inconsistent with the act.
The learned counsel contends that
Section gives implied authority fol-
the erection OF stands next To ths
building. That Section reads as fol-
lows:
That no person shall erect or
use any stand or other convent
ence 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"
i cannot agree with this contention
Section 7 Is merely a further regula.
tion OF the use of these markets mad,
by the Legislature itself. II merel,
prohibits the erection of any stand,
an the corners OF King and Madison
streets where intersected by othei
streets.
The reading OF the act OF 1871
makes IL clear 10 my mind that III,
Legislature in the first place intende,
TO make certain establishment of Far
mers' and Truckers curbstone market
on King and Madison streets under sue
regulations as would ena BILE the far
/ mers TO sell their produce on IN
streets. So far as any other person
We're concerned who desired to sell o.
the streets, the discretion was left en-
tirely with the Street and Sewer Dc
partment. No effort was made by tn
II
who owned store and wanted to dis
play his goods on the stand In tn
street. Indeed, the merchant Is nc
mentioned! IL did not intend. as / Sc
II, TO include him or TO exclude hin
but IL intended TO leave it with tn
agency having charge of the street
In the city OF Wilmington.
Being satisfied that the gener,
Jurisdiction has been given To III
Street and Sewer Department over III
pavements as well as the streets, ar
that there is nothing in the act
! 1917 which limits such authority !
far as the erection of stands on III
sidewalks Is concerned, / am force
10 the conclusion that the Street ar
Sewer Department had the authorii
TO repeal any ordinances former
passed by The Council" giving a,
thority to persons to erect stands {
the streets.
The only remaining question
whether or not this particular resol,
ton 'is reasonable. 1t is, of cour.
admitted that all ordinances or res
iutions. or wh-tever they may
called, enacted by the legislative bo,
ot City, must be reasonable. 1t mu
= also be admitted that every presum
>. ard Sewer Department with respect
tion is in favor of their validity.
The responsibility Is upon the Sire
these matters. The credit or CRITICS
Of the passage OF this resolution mu
: be with that department. / am sat
fed that II has not acted arbitrari
:. but has used its best judgment and
: could not think OF holding the resol
ton void upon any such ground
this.
My conclusions are that the res
luton, or so much OF II as refers
this question, Is valid. and that all
the defendants. are, therefore, gull