Becker v. State
| Decision Date | 20 May 1936 |
| Citation | 37 Del. 454,185 A. 92 |
| Court | Delaware Superior Court |
| Parties | DOROTHY BECKER, d. b., v. THE STATE OF DELAWARE, p. b |
[Copyrighted Material Omitted]
Superior Court for New Castle County, No. 106, January Term 1936.
Certiorari to the Municipal Court for the City of Wilmington.
In the municipal court for the city of Wilmington, Dorothy Becker was charged as follows: That, on September 17, 1935, she did unlawfully violate an act to regulate and license the cleaning, pressing, and dyeing business, to wit, did engage in the business of retail dealer at 204 W. 10th street, without first obtaining a license therefor from the trade board, and having been adjudged guilty, she was on December 3, 1935, sentenced to pay a fine of $ 75 and costs of prosecution.
Proceedings in certiorari were instituted in the superior court for New Castle county, and, in obedience to a writ issued from that court, the record was transmitted to the superior court.
Exceptions were filed to the record by which it was alleged that the Act (40 Del. Laws, c. 120) under which the conviction was had is unconstitutional in that:
(1) It delegates legislative power to the trade board in violation of Article 2, § 1, of the Constitution of Delaware which vests the legislative power in a General Assembly.
(2) That Sections 4 and 8 of the Act, under which the defendant was convicted, gives arbitrary and untrammelled powers to the trade board in violation of Article 1, § 7, of the Constitution declaring, inter alia, that no person shall be deprived of life, liberty, or property unless by the judgment of his peers or by the law of the land.
(3) That said sections are in violation of the Fourteenth Amendment to the Constitution of the United States.
(4) That said sections are in violation of Article 2, § 1, of the Constitution of Delaware.
The state moved to strike out the exceptions, and for affirmance of the judgment of conviction, for the reason that the questions raised under the exceptions were not presented to the trial court.
The statute under which the conviction was had is entitled, "An Act to Regulate, Control and License the Cleaning, Pressing and Dyeing Trade in the State of Delaware and to Create a Trade Board with respect to the Regulation, Control and Licensing Thereof," and is found in Chapter 120, Vol. 40, Laws of Delaware.
The statute in several preambles declares the existence of an emergency affecting the public welfare in the cleaning, pressing, and dyeing trade due to abnormal economic conditions; that the public welfare demands an effective regulation of the industry, standardization of work, establishment of a proper responsibility on the part of members of the trade to the public at large, the establishment of proper sanitary conditions; and the purpose of the act to promote and protect the public welfare, and to eliminate unfair, unsanitary, and demoralizing trade practices.
By Section 1, a trade board is created consisting of five members, appointed by the Governor, one to be a "retail dealer," one a "wholesale dealer," one a "retail plant owner," and two from the public at large.
By Section 2, a "retail dealer" is defined to be one operating a cleaning, pressing, or dyeing establishment where the services are offered for sale directly to the consumer, but where no part of the services are performed. "Wholesale dealer" is defined as one who operates a cleaning or dyeing establishment performing work solely for retail dealers. "Retail plant owner" is defined as one engaged in business as a retail dealer, but who performs such services without letting any part thereof to a wholesale dealer.
A "cleaning, pressing and dyeing" and "cleaning or dyeing establishment" are defined as any place where the service of dry cleaning, wet cleaning as a process incidental to dry cleaning, dyeing, spotting, and finishing any fabric is rendered for hire, or is sold, resold, or offered for sale or resale, excluding establishments where the services are rendered solely in the course of the original manufacture of the fabrics. "Dry cleaning" is defined as the process of cleaning fabrics by immersion and agitation, or by immersion only, in volatile solvents, and processes incidental thereto.
"Sanitation" is defined as the methods and processes of cleaning, dyeing and finishing fabrics in accordance with the approved rules and regulations prescribed by the board.
By Section 3, the trade board is empowered to adopt and promulgate rules and regulations, not inconsistent with the act, or of the laws of the state or United States, which rules and regulations are declared to have the force and effect of law; to establish by such rules and regulations an effective control of the business, including the time, place, and manner in which the services shall be performed and sold to the public; to grant licenses to conduct the businesses named, or to decline to grant licenses, to suspend or revoke licenses granted, upon notice and hearing, with the right of appeal to the superior court for the refusal, suspension, or revocation of license, the appeal, however, not to operate as a supersedeas; to conduct hearings, subpoena witnesses, and examine them under oath, and to examine books and records of those engaged in the industry, with the right of access and entry into places of business at reasonable hours; to act as meditator or arbitrator to settle disputes between those engaged in the business and between them and consumers; to promote sanitary conditions in the prosecution of the businesses by the enforcement of rules and regulations, and it is enacted, "for the purposes of this Act, the performance by any person, firm or corporation, subject to the provisions of this Act, of work or services at less than the reasonable cost thereof, will be prima facie evidence of the performance of such work and services in an unsanitary manner."
By Section 4, engaging in the businesses as defined without obtaining a license from the board is prohibited, and by Section 8, violation or failure to comply with the provisions of the act or rule or regulation of the trade board is declared to be a misdemeanor, punishable by fine not exceeding $ 75, or by imprisonment not exceeding 25 days, or both.
The trade board appointed under the provisions of the act adopted certain rules and regulations, establishing minimum costs in minute detail; minimum standards for articles represented as dry cleaned; imposing liability for damage upon licenses; fixing hours for work, differentiating between cities having more and those having less than 10,000 of population; for the examination of applications for license and for establishing grounds for refusal, cancellation, or suspension of licenses; for the prohibition of unfair trade practices, such as misleading advertising and guarantees, disclaimers of responsibility, misrepresentation of prices, lotteries, secret rebates, selling below standard quality, false statements concerning insurance, enticement of employees and bribery; and for the promotion of sanitary conditions in places where garments are received, displayed, or delivered.
By Chapter 27, Vol. 40, Laws of Delaware, provision was made for certain occupational licenses, among which was that of "textile renovator," defined as embracing every person engaged in the business, other than in a private capacity, of pressing, cleaning, washing, scouring, bleaching, dyeing, or otherwise reconditioning any article of clothing, or of any woven or knitted fabric.
The judgment is reversed.
Philip Cohen for defendant below.
P. Warren Green, Attorney-General, Robert H. Richards, Jr., and C. Edward Duffy, Deputy Attorneys-General, for the State.
A preliminary question must be decided. The state insists that the record does not show that the constitutionality of the act was questioned in the court below by motion to quash the information filed, or otherwise, and the question not having been raised there, it cannot be presented here for the first time. And further, it urges that in certiorari proceedings the reviewing court is confined to a consideration of the record sent up in obedience to the writ; can hear nothing outside of it to show jurisdiction, regularity, or want of it; that its function is to confine the lower court to cases within its jurisdiction, and to the execution of its powers in the manner prescribed by law; and not to inquire into and decide the merits of the case, if the case has been regularly and fairly tried, for such correction is provided for by appeal. 1 Woolley Pr., § 897.
The last contention is not disputed. In later years this court has adhered rigidly to the rule that it will hear and consider nothing outside of the record. But the argument is not applicable here for the record contains everything necessary for a determination of the questions presented. The charge preferred against the defendant below appears, of course, from the information filed in the court below, which is a part of the record, and the act, under which the prosecution was had, is sufficiently identified. There is no need, therefore, to supplement the record.
A writ of certiorari is a writ of error, and the law and practice relative to writs of certiorari follow closely the law and procedure incidental to the ordinary proceedings in error. King's Adm'x v. Hudson's Adm'r, 2 Harr. 135; 1 Woolley Pr., § 895.
Generally, an appellate or reviewing court will not consider any question that was not raised in the court below. This rule, in its general application, rests upon sound reason, and upon some considerations of convenience and necessity, for, if the question had been...
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