Evening journal., 1921-11-02
CONTINUED From First Page. }

judge in this connection observes:
The reading Of the Act of 1917
makes it clear to my mind that the
Legislature in the first place intend
ed to make certain the establish
inent OF farmers ana truckers curb
stone markets on King and Madison
streets. under such regulations as
would enable the farmers to sell
their produce on the streets. So far
as any other persons were concerned
who desire TO sell on the streets, the
discretion WAS Jeff entirely with the
Street and Sewer Department. No ef-
fort was made by the Legislature to
protect the merchant who owned
store and wanted to display his goods
on the stand in the street Indeed
the merchant is not mentioned. IL did
not intend. as / see II. TO include him
or to exclude him, but it intended to
leave II with the agency having
charge Of the streets in the City Of
Wilmington.
Judge Hastings opinion in full is
as follows:
THE defendants in the above
stated case are charged with the vio-
iation OF resolution OF the street
and Sewer Department, approved
October Il. 1921.
THE particular section that lr Is
claimed the defendants have violated
is Section 4. which reads as follows:
Section 4. That no person Or
persons. firm or corporation shall
place. erect. build. construct or
maintain or cause or permit TO
be placed. erected. built, con-
structed or maintained, any
booth, stand. stall. cabinet. tent
or place. for the purpose OF dis
playing or selling any goods,
wares or merchandise. OF for
any purpose whatsoever. which
extends beyond the true building
line OF any street. highway. lane,
or alley Of the city OF Whining
ton. Delaware; or shall in any
manner place, display or sell
any goods. wares. or merchan-
4 disc upon any portion OF any
street. highway. lane or alley Of
/ the city OF NAlullNENNHf AffAA~
ware. between the true building
lines thereof. Provided. how
ever. that nothing In this Sec
tion shall be construed TO inter
fere with any provision, rule or
regulation now or hereafter
made relating TO public curD-
stone markets
1T is admitted by the defendant
that at the time Of their arrest an,
trial they we're maintaining stand
for the sale OF goods. wares and mer
chandise in certain streets OF tn
city OF wilmington. None OF tn
goods so sold was raised or fed Of
lands occupied by the defendants.
The contention OF the counsel 70
the defendants. briefly stated, Is a
follows:
THAT the ordinance entitiel
IAN Ordinance Establishing an
Regulating the Public Markets o
the City OF Wilmington" Charter
Laws and Ordinances OF Wilmington
Page s17. gives authority in Secuo
12 to persons to display and Sc
goods in front OF any store they oe
cupy as renter or owner within tn
space OF four feet OF she buildin
which he or she occupies as his
her store or place Of business; th'
this ordinance has never been r.
peaied and the Street and Sewe
Department Is without authority
repeal Il: that this ordinance was
effect when the Legislature passe
the act entitled IAN Act to Revls
and Consolidate Statutes Relating
] Curbstone Markets in the City
Wilmington" Chapter 1876, %. Law
OF Delaware. approved April /
1917: that the act Of 1917 undertoo
TO regulate the erection Of stands
certain places in the Farmers an
Truckers Curbstone Markets. an
thereby. Indirectly excluded n
Street and Sewer Department froi
interfering in any way with the ere
ton or maintaining OF such stand
"2-Counsel further contends mi
as 70 stands other than those stan'
Z erected in Farmers and Trucke
l Curbstone Markets, the act OF lsl
which gave the Street and Sewer ID
partment authority 20 regulate ma
kets other than Farmers and Trucl
e ers' Markets. had reference 20 u
s curbstone part OF the market on
e and had no reference TO STAN
b. against the building.
e "s-That the Street and Sewer d
C nartment has no express power
d ieeisiate as to the use Of the sid
g walks
70 "4-That the resolution makins
unlawful 10 erect stands on any al
n ALI streets is unreasonable.
D "After most careful consideratii
y Of these contentious. It seems 10 r
j. the important questions to decide a
y these:
a "r-Does the Street and Sewer d
partment have such general 1ur
diction over the sidewalks OF {
, citv Of wilmington as to be able
% nrevent the obstructing OF such sid
=. walks bv the erection and maini
nance OF stands, etc.
o-Tf the Street and Sewer. y
nartment does have such genei
"a jurisdiction. is there anything in I
,s act Of 1917 above referred 10 viii
prohibits tho department from usi
that authority on King street
Madison street in the city OF W
mington. these two streets being d'
ignated in the act as Farmers a
II truckers Curbstone Markets.
"s-Is the resolution adopted
the street and Sewer DEPARTING
Or above referred TO unreasonableT
is "The first question necessitates
We consideration OF the act creating
a. ! r... - courcr ncpartmont. n