Evening journal., 1921-11-02

Ordinances and Regulations pertain
ing to or in any manner made for 1
the government OF said city.
Counsel for defendants in con-
tending that the jurisdiction Of the |
department does not extend to the
sidewalks calls attention to the fol-
lowing language used IN Section 4
Of the act. to wit SO far as the
purpose and obie-ts OF this act are
concerned be SUBS suited for This
Counsel aforesaid.
Il do not see anything particularly
significant about the use Of the lam
guage so far as the purposes and
objects of this Act are concerned
The very plain object Of the Act, IL
seems to me. was TO give TO the
Street and Sewer Department au-
| thority which had heretofore been
exercised by The Council The OBJ
ect In putting in these words was to
prevent the possibility OF the Street
and Sewer Department from taking
more authority than il was Intended
IL should have. The Department was
clothed with the same rights. pow
ers, privileges and authority as were
beoore the passage Of this Act by
I any means whatsoever vested in The
! Council aforesaid II the words
so far as the purposes and objects
OF this Act were concerned were
not used It would be possible to con-
clude that the Act gave the Street
and Sewer Department all the power
which Council formerly had; in other
words. il would be substituting the
Street and Sewer Department for
The Council in everything. and
would not have confined It to the
streets.
How can II be said that Council
could have any authority over the
sidewalks in the city when this Act
gives the exclusive Jurisdiction to
the Street and Sewer Department
II seems to me It would have been
unreasonable TO have divided author
ity over the streets and sidewalks in
any such manner. The reasonable
thing would be to have the streets
and pavements controlled by the
same agency. The question Of strict
construction OF Acts OF the Legis-
lature. which give authority TO GER
tain agencies, does not apply here
because this was not a new author
ity given by the Legislature; It wa
merely a transfer of authority from
The Council TO the Street and
Sewer Department; and even II 81
did require a strict construction,
am satisfied that IL is fully met wher
that broad jurisdiction is given from
building line TO building line; the
facts that sidewalks or pavements
Hm -f.H
because between the building lines
must OF necessity include the pave
d ments.
Il do not think the case OF Street
and Sewer, Department VS. Connel
reported in Pennewill 571. cited
by counsel for defendants IS In an,
n way controlling. There was no opin.
ion rendered by the court in thaf
T case. and it merely holds that 'Th'
3 Council was entitled 10 certain fund.-
collected from people who use the
d streets. can understand how
d there might have been a very Sc
z rious action upon that point. but
7. don't think the decision touches tn
1 point raised here.
n Il am. therefore. satisfied that IN
u Act creating the Street and Sewe
= Department makes that department
e the only agency in the city that ca
e legislate with respect TO the streets
'r the sidewalks or pavements
Il THE next important question
= whether or not the Act OF 1871
n which was passed for the purpose O
70 revising and consolidating the stat
IN utes relating to curbstone market
d in the City Of Wilmington, has any
is thing in Il which prohibits the Stree
% and Sewer Department from regulat
u ing those markets
~ The first part OF Section OF sal
2. Act gives the Street and Sewer De
X partment authority in its discretio
In to establish curbstone markets
IA such curbstone markets TO be oc
"A cupied solely by farmers and truck
,e ers whose principal business is rails
n, ing Of farm product or truck and b
= none others
l. THE same section provides tina
,t the public curbstone markets nov
ls existing on King and Madison street
"a IN said City Of Wilmington shall b
= deemed and taken to be farmers an
a truckers curbstone markets for a
the purposes Of this Act. and shall b
|, continued as such under the prov
sions Of this Act, in addition TO an
y. additional farmers and trucker
- curbstone markets that may be e'
US tablished on other streets under N
provisions of this Act
e "The same Act undertakes TO res
10 ulate the use OF these two marke
e. which arc thus established.
THE section starts out by givin
II the Street and Sewer Departmei
nd general authority TO establish farm
ers' and truckers curbstone ma
on kets, and then the Legislature by !
ne own Act establishes two OF the
re markets. and at the same time pr
vides its own regulations for q
le- two thus established.
Is "The regulations established
he the Act provide for the days Of q
10 week when the farmers may occur
To- such markets. when they shall r
o. move their vehicles. what they mi
sell. etc. and provides that the pr
10 ducts may be sold on the sidewalk
al Counsel for the defendant max
~, the point that the Act Of 1917 Civ
TO the Street and Sewer Depat
ment authority to establish marke
rs but no power whatever to regula
az a, the same.
IL at seems to me that the power
IS establish a market in the absen
hu OF limitations. OF necessity carri
with It the power to regulate.