Every evening, Wilmington daily commercial., 1921-05-16
VALIDITY OF STREET
MARKET REGULATION
ATTACKED IN COURT
In Case of Benjamin Hicks Lat
ter's Counsel Says Clerk Has
No Discretion.
CANNOT REFUSE A PERMIT

Decision was reserved until Tuesday
May "a, by Judge Lynn in Municipal
Court today in the case of BENJAMIN
Hicks, a farmer of near stanton. charg-
ed with violating a resolution Of the
Street and Sewer Department in oc-
cupying a stand in the farmers and
truckers market, on King street, with
out a permit. The case is of special in
terest to the hundreds of farmers and
truckers who take out permits for
stands in the city market, as IL ques-
tions the discretionary power OF the
clerk of the market and the legality OF
the resolution of the Street and Sewer
Department.
Hicks was twice arrested after
permit was refused him for occupying
a stand which he had been accustomed
10 use for several years. When Hicks
was arraigned the second time in Muni-
cipal Court, his counsel William I.
Lyman, announced that he would make
a test case of the charges against Hicks
Edward r. McAtear. clerk OF ths
market. testified that Hicks made an ap-
plication for a permit 10 occupy his old
stand in due form. but il was refused
him. After the refusal Hicks persisted
in occupying the space anyway and he
later offered to give Hicks a stand in
another place, he said. Hicks was not
called TO the stand. Mr.. Lyman easing
his defense entirely on the matter Of
law.
The act Of the General Assembly.
effective April 80. 1917. Mr.. Lyman said.
which put the clerk OF the market 3nder
the control OF the Street and Sewer
Department. took away from both the
clerk and the department the right 10
refuse TO reassign q farmer or trucker
his old stand. The Law says: The
Clerk of the Market shall reallot TO
said applicant his or her old spaces as
requested and no spaces already i'm
mediately previously occupied by any
such farmer and trucker shall be al
Iotted TO any other farmer or trucker
until after April 20. and the immediate
ly previous occupant shall always have
the preference and shall always be
allotted his or her old spaces for the
succeeding year previous. provided
such previous occupant shall express
such a desire in due FORM
If the farmer or trucker makes a
false application or occupies a stand
without a permit he shall on conviction
fined $50 and costs.
THE resolution of the Street and
Sewer Department, fixing a penalty of
IS and costs for occupying the space
without 2 permit amends the act Of
the Assembly and therefore, is not
legal Mr.. Lyman said. The depart
me8t may pass resolutions governing
the execution of the Law, but no reso-
luton can affect the law itself"
Assistant City Solicitor Davis con-
tended that after the mans permit had
expired he continued in occupying the
stand and that the man did not raise
the produce he sold as provided by the
Law, but bought il and retailed it in
the market" No testimony was Of
fered in confirmation Of the latter aile-
CATION. "If he violated the law in this
manner then the clerk Of the market
had the right TO refuse him a permit"
Mr.. Davis said.
I'VE don't care that much" said Mr.
Lyman, swapping his fingers, for the
clerks order for the man to yacate
He has no discretionary powers. If
the man violated this law let him be
brought into court and properly con-
victed. The clerk cannot try and con
vict him."
Attorney lyman said he intended 10
take the steps necessary to force the
issuing Of the permit.