Every evening, Wilmington daily commercial., 1921-10-13
CHANCELLOR DlSSOLvES
PARTS OF INJUNCTION
AGAINST SAFETY BOARD
Continued from page 1.

sition.
If the principle thus contended for
be fully conceded. the court is not
aided thereby In determining this par
ticular motion. for, In this case, II was
not The Council. the law making body
for the city. that undertook to pur-
chase the fire hose, trucks and engines
In question. 1t was the Department
of Public Safety. Had II been The
Council that disregarded the ordl-
nance. then the principle contended for
under this head would be pertinent.
(c) II is further contended that the
Department OF Public Safety was not
required to observe the requirements
of the ordinance OF 1870, because the
language of section of the Act of
the General Assembly (Chap. 110, Vol,
SO, Laws of Delaware) indicates that
IL was the intention of the General
Assembly of the State to authorize
the Department to acquire such prop
erty as is here involved at such prices
d in such manner as IL saw ut In
the exercise 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 propo-
sition that the legislative power OF the
municipality OF Wilmington, express
ing itself through The Council. is in
ferior and subordinate to the legis-
lative power OF the State, whose crea-
ture IL is. This proposition IS, OF
course, beyond dispute.
The only question that calls for con-
sideration deals not with the correct
ness of the principle. but with it's APP
plicability and this in turn involves
construction OF the legislative lam
guage employed in the section re-
ferred to. II, under proper con-
struction of said section, Il appears
to have been the legislative intent that
the matter of purchasing fire equip
lment, the price to be paid therefor, the
manner of purchase, &c, were vested
in the discretion OF the Department of
| Public Safety, then an ordinance OF
the city limiting the right to purchase
TO those leases only where a lowest
bidder has been ascertained after q
public inviting of bids, must give
way For. II there he conflict between
the statute and the ordinance, the
statute prevails.
Is there such conflict in this case
Before answering this question. IL vii
not be out OF place for me 20 mention
that when this matter was before tn,
court at the prior hearing. the psrticu
lar view OF II now presented was no
mentioned, or. II IL was, II was e,
lcursorily referred TO as to entirel,
escape attention, the argument thei
being that section OF the Act was O
such nature as TO indicate the legls
lative intent that the ordinance wa
not yet operative on the department
but only so when the department shal
have become fully established: tha
is to say, at a future time. Section
and its significance in connection Wit
the point now being discussed, wa
neither urged in the argument, no
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 competitiv
old ordinance must be held TO be inar
pllcable TO the contracts for the pur
chase Of fire hose. engines and trucks
: There is nothing in the prior opinio
! that holds against this contention
and, even II there were, the cour
! ought not 10 hesitate to refuse 10 a6
here thereto II. on further considera
ton. there should appear TO have bee
an error OF view.
now recur TO the question befor
me, viz; is there anything in sectio
5 of the Act OF the General Assemhl
: creating The Department OF Publ
Safety which indicates an intent
vest full discretion in the departmer
; TO make such contracts as those I
question, free from the restraints I'm
posed upon officers OF the city by III
!, ordinance OF 1870?
The ordinance forbids officers IN
; committees to make contracts for III
city unless sealed proposals for III
same are publicly invited and the cor
tracts given TO the lowest bidder {
bidders. Sectiaa II the Act aprro'
ed March 10, 1921. provides as 70
= lows:
I Section 5. That on and after n
I. first day OF May. A. D.. 1921, TT
: Mayor and Council OF Wilmington
/ hereby authorized and empowers
6 through the agency OF the Depar
q ment Of Public Safety hereby crea
= ed, constituted and appointed. ar
their successors in office, to prepare
plan for the establishment Of a fl
department for said city, and the est
. mated costs thereof, and TO take oy
for public use, by purchase, compr
4 mise, condemnation as hereinafter pr
vided. or otherwise, such real and pc
sonal property OF the several fire cor
panies OF the City OF Wilmingtc
Delaware, as We're in esistance Al
recognized by The Mayor and Coun
OF Wilmington as a part Of the Fl
Department of the said city, on Sc
tember first, A D., 1918, as q COMP
tent appraiser, or appraisers OF a ci
of its class. together with such 9th
property as may be necessary,
p such price or prices as may be
IN termined in any OF the above procee
D. ings. or agreed upon by the Depai
ment of Public Safety in agreemer
~ to purchase the same. II said pl
10 is approved by The Council of II
as Mayor and Council Of Wilmingto
Ah the said Department of Public Safe
ld shall proceed TO acquire by gift, p'
be chase. condemnation as hereinaft
In provided. or otherwise. such real a
s. personal property as may be conet
plated in said plan. Any Fire Co
o. pany may reserve the right TO acc,
IN or reject the amount agreed upon
rH the appraisers"
OF OF understand the City Solicitor, W
xt appears for the defendants, to conte
90 that this section removes the Depa
OF ment OF Public Safety from the opel
s tion of the ordinance Of 1870 for t
ge reasons. His first reason is, that I
90 legislative direction that the Ma,
VI. and Council shall do the VIC
op Through the agency of the Depa