NICHOLSON
CH., and SPRUANCE and GRUBB, J. J., sitting.
OPINION
NICHOLSON, CH.
The
question before us under this writ of error, is, whether or
not the power and authority to enact ordinances or
resolutions requiring and regulating the use of certain
safety appliances called fenders, on trolley cars operated in
and upon
the streets of the City of Wilmington is vested in the
"Council" of said city.
The
cause was an action on the case, and was argued before the
Superior Court in and for New Castle County on
a general demurrer to the seventh count of the declaration,
which was as follows:
"(7)
For that whereas, the said defendant, heretofore to wit, on
the twenty-first day of August, A. D. one thousand nine
hundred and three, was and still is a corporation created by
and existing under the laws of the State of Delaware, and as
such, owned and operated a certain street railway at and
within the City of Wilmington, in the County of New Castle
aforesaid, and the plaintiff avers that, heretofore, to wit,
on the said twenty-first day of August A. D. one thousand
nine hundred and three, at the county aforesaid, the said
defendant, while engaged in the said business was charged
with the duty of using and operating reasonably safe cars
equipped with reasonably safe appliances, in accordance with
the ordinances, of the Mayor and Council of Wilmington
relating thereto, and in particular in accordance with an
ordinance relating to the using of fenders on street cars,
which ordinance was passed by the Council on the fourth day
of December, A. D. one thousand nine hundred and two, and
approved by the Mayor on the eleventh day of December, A. D.
one thousand nine hundred and two, yet the said defendant
disregarding its duty in that behalf, did not use a fender on
defendant's car, said car being No. 142, while the same
was being operated by it on Market Street in the City of
Wilmington, aforesaid, on the twenty-first day of August, A.
D. one thousand nine hundred and three, in accordance with
the provisions of the said ordinance requiring said fender to
be approved by the Council of the said the Mayor and Council
of Wilmington, but on the contrary, the said defendant
company did, on the day and year aforesaid, with the car
aforesaid, on the street aforesaid, knowingly and unlawfully
use a fender on said car which was expressly, and by
resolution passed by the Council on the twelfth day of March,
A. D. one thousand nine hundred and three, disapproved by the
said Council, and by reason thereof, and after it had full
knowledge of the passage of said resolution, and at the time
and place aforesaid, the said car, while the same was being
used and operated on Market Street aforesaid,
(said street being then and there a public highway or street
upon which tracks of the said railway of the said defendant
were laid) ran into the said Herbert H. Bullock, the
plaintiff's intestate, while he, the said Herbert H.
Bullock, was lawfully crossing the said street, in the
exercise of due care and caution on his part, and the said
Herbert H. Bullock was thereby and by means thereof, thrown
down and under the said car of the said defendant, and was so
cut, crushed, shocked, bruised and injured on his body, limbs
and head, that he then and there immediately died; that the
death of the said Herbert H. Bullock was caused by said
negligence of the said defendant, wherefore the said
plaintiff saith that she as administratrix, is injured, and
hath sustained damages as such administratrix, to the amount
of fifteen thousand dollars, and therefore she brings her
suit, and the said plaintiff brings into Court here, the
letters of administration to her granted by the Register of
Wills in and for the County of New Castle aforesaid, the date
whereof is a certain day and year therein mentioned, which
gives evidence to the Court of the grant of administration to
the said plaintiff, as aforesaid.
"And
thereupon on motion of the said plaintiff by her said
attorney, it is ruled by the Court here that the said
defendant answer the declaration aforesaid or judgment will
be rendered against them in default."
Whereupon
the said defendant on the first day of February, A. D. 1904,
to the count aforesaid, filed the following demurrer:
"And
now, to wit, this first day of February, A. D. 1904, the said
defendant, in the above stated action, by Walter H. Hayes,
its attorney, comes and defends the wrong and injuries, when,
etc., and says that the seventh count of the said
declaration, and the matters therein contained, in manner and
form as the same are above stated and set forth, is and are
not sufficient in law for the said plaintiff, to have or
maintain her aforesaid action thereof against the said
defendant, and it the said defendant, is not bound by law to
answer the same. And this it is ready to verify, wherefore by
reason of the insufficiency of the said declaration, and the
said count thereof in this behalf, the said
defendant prays judgment, and that the said plaintiffs may be
barred from having or maintaining her aforesaid action
thereof against it, etc."
Whereupon
a joinder in demurrer was entered.
After
argument on the demurrer in the Court below, the demurrer was
sustained and final judgment entered thereon for the
defendant at the election of plaintiff's counsel of
record.
Thereupon
the plaintiff sued out this writ of error, the single
assignment of error being as follows:
"And
thereupon the plaintiff below, appellant, by Robert G. Harman
and J. Harvey Whiteman, her attorneys, comes into Court and
says, that in the record, proceeding and judgment of the
Court below, there is manifiest error in this:
"First.
That the Court below erred in sustaining the demurrer of the
defendant below, to the seventh count of the declaration of
the plaintiff below, appellant, and in rendering judgment
thereon for the defendant below, whereas the plaintiff below
insists that the said demurrer should have been overruled,
and the judgment of the said Court below should have been
rendered on the seventh count above mentioned, in favor of
the said plaintiff below.
"Wherefore
the plaintiff below, appellant, prays that the
judgment of the Court below may be reversed."
On the
one hand, the contention of the plaintiff in error, is, that
the authority to pass said ordinance has been and still is
largely in the "Council" by virtue of the Act of
Assembly of 1883 creating the government of the City of
Wilmington.
On the
other hand, the defendant in error, while admitting that such
authority, if it did exist at all, was originally in the
"Council," contends that it was removed and taken
away from the "Council" and lodged in the
"Board of Directors of the Street and Sewer
Department" by the Act of Assembly entitled "An Act
Relating to the Streets and Sewers of the City of
Wilmington," passed at Dover, April 20, 1887, being
Chap. 188, Vol. 18, Delaware Laws.
It is argued with great ingenuity by counsel for
plaintiff in error that the above cited act which created the
Street and Sewer Department gave that department only such
enumerated powers, as they classify in their brief as
follows, to wit:
"(1)
To extend and widen old streets and open new streets
(Charter, Sec. 115 and p. 140).
"(2)
To pave and repair the sidewalk from curb to building line
(Charter, Sec. 119).
"(3)
To pave the streets and repair the same from curb to curb
(Charter, Sec. 118).
"(4)
To lay the curb of the sidewalk (Charter, Sec.
119-21).
"(5)
To condemn private property, to extend, widen and open
streets, (Charter, Sec. 116 and p. 143).
"(6)
To open streets, to lay and repair sewers and drains therein
(Charter, Sec. 134 and p. 141).
"And
for these PURPOSES AND OBJECTS of the Act the Street and
Sewer Department was given the powers formerly possessed by
the 'Council' and none other."
And
they contend that the power to pass such an ordinance as the
Fender Ordinance in this suit belonged...
