Every evening, Wilmington daily commercial., 1921-05-24
CLERK OF MARKET
MUST GIVE A PERMIT
When Farmer Applies for Re-
newal, is Opinion of Judge
Lynn.

A decision taking from the clerk ol
the Market authority TO refuse TO re-
issue a permit for a stand on the curb
market. to a farmer who previously oc.
cupied IL. a power the clerk heretofore
exercised. was handed down By Judge
John Lynn in Municipal Court today in
dismissing Benjaman Hicks. a farmer
charged with occupying stand on the
curb market without permit.
When testimony was heard a week
ago. William T.. Lyman, counsel for
Hicks. contended that under no circum-
stances could the Street and Sewer de-
partment, which controls the curb mar
kets, through the clerk of the market,
make resolutions conflicting with the
act of the General Assembly regulating
the same. Testimony showed that
Hicks had applied for permit for a
stand on King street market. which he
has been occupying for number of
years, and complied in every respect
with the law covering such application.
No reason was given in court for Clerk
of Market McAteer's refusal to grant
the permit. IL was hinted that Hicks
did not produce the goods he sold on
market, but no substantiating testimony
was heard.
Hicks was twice arrested when he
continued to occupy his old stand at
the expiration of his permit for that
place. Mr.. lyman said his client did
so at his request. as he wanted to make
test case of the affair.
Mr.. Lyman based his contention on
the act of the Legislature. effective.
April 81, 1917. which states that. when
1a1 laes eli N
application for a permit to occupy the
stand he already occupies. it shall be
the duty of the clerk of the market TO
grant him such permit, in preference
to all other applicants. Judge I.ynn's
decision is lengthy and covers fully the
powers and duties of the clerk of the
as prescribed by the act of the
The decision says:
There is no doubt in my mind that
this duty is plain and explicit and that
the defendant, having filed his applica-
ton for a re-allotment of his old space
or spaces. that il then becomes the duty
Of the clerk of the market TO perform
his duties as set forth so plainly in the
direct words of the statute TO issue to
the defendant his permit or certificate
he defendant as is provided for and
set forth.
II have thoroughly examined the
.ules and regulations for the regulation
IF cur1ostone markets, and find no in
existing between them and
he statute, so far as this case is con-
,erned There may a confusion on
he part OF the clerk OF the market as
% the penalty clause of the Street and
Sewer Department, and the penalty
,lause in the statute. and / may here
Iay, that the penalty clause III the sta
ute is for violation of sections as
regulating duty of applicant for u
'tand) while the penalty clause of rules
If Street and Sewer Department are
or violation of market rules establish !
ID under section . Of the act of General |
Assembly.
'"rhe General Assembly made tho |
ules that govern this case and thny |
hould be followed both by the PROSE |
ufing witness, the clerk OF tho market. |
nd by the defendant. These rules are I
'lainiy set forth and tho action u made /
lear by reading section g."