Cutrona v. The Mayor and Council of Wilmington

• Decision Date: 09 May 1924
• Court: Court of Chancery of Delaware
• Parties: SAMUEL CUTRONA, v. THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal corporation of the State of Delaware

124 A. 658

14 Del.Ch. 208

SAMUEL CUTRONA, v. THE MAYOR AND COUNCIL OF WILMINGTON, a Municipal corporation of the State of Delaware

Court of Chancery of Delaware, New Castle

May 9, 1924

INJUNCTION BILL. The Board of Directors of the Street and Sewer Department of the City of Wilmington, on March 31 1922, adopted a "resolution fixing the terms and conditions under which motor busses may operate on and over the streets of the City of Wilmington, and providing penalties for violation." The resolution makes it unlawful for any person to use or occupy for the purposes of operating a motor bus any street in the City of Wilmington without first obtaining a permit to do so. No fee or charge of any kind is exacted for a permit. The term "motor bus" is defined in the resolution as "every mechanically propelled vehicle not operated on rails or fixed tracks which is used or engaged in the transportation of persons for hire." Certain kinds of vehicles not necessary to mention are excepted from the terms of the definition. Certain restrictions are laid down as to streets on which motor busses shall not operate or be parked. In order to secure a permit, application is required to be made to the directors of the Street and Sewer Department, in which shall be set forth specified information concerning the number, type, etc., of the busses desired to be operated and a map of a proposed route. The resolution proceeds to provide:

"Upon the filing of such application it shall be given consideration by said Board at its next regular meeting. If such application be granted, said Board shall issue such permit after the filing of the liability insurance policy hereinafter provided for."

The provisions which are required to be contained in the liability insurance policy are then set forth in detail. Power is reserved to the board in their absolute discretion to suspend temporarily or revoke any permit whenever the board shall find that the holder of such permit, his agent etc., has violated any of the provisions of the resolution or of any other resolution of the board regulating traffic upon or the use of, the streets of the city or for such other cause as to the board may seem sufficient. Whenever a permit shall be revoked, it is provided that no new permit shall be issued to its holder until after the expiration of at least one year. Detailed requirements concerning the equipment of motor busses, their operation and maintenance, and certain traffic regulations are set forth in the resolution, and penalties are provided upon conviction before the Municipal Court for violation of any of its provisions.

Prior to the adoption of this resolution, viz., on June 19, 1919, the city had through its Council in pursuance of legislative authority (Laws of Delaware, vol. 30, c. 127) passed an ordinance requiring the payment of a license by every person operating motor vehicles for the transportation of passengers for fares at the rate of $ 50 for each vehicle. The complainant in February of 1922 applied for and secured such licenses and has ever since paid the license fee provided for under the ordinance of the Council. Upon the adoption of the resolution by the Board of Directors of the Street and Sewer Department, it thus appears that in order for a person to operate a motor bus in Wilmington he was required not only to pay a license as required by ordinance of the Council, but also to secure a permit from the Street and Sewer Department of the city. The complainant made application to the board for permits to operate three busses under the terms of the resolution. The application received favorable consideration and permits were accordingly issued to the complainant in the year 1922. Permits to him were again issued for the year 1923. The permits by the terms of the resolution expired on December 31 of each year. The complainant's busses (three in number) each have a seating capacity of eighteen persons. They are operated between the City of Wilmington and the town of New Castle. The route over which the permits authorize them to travel in the City of Wilmington is 4,132 feet from the city line to Front Street and thence for the distance of six city squares to Fourth and French Streets.

The evidence shows that the inspector of the board made numerous complaints against the complainant because of his alleged infraction of the rules and regulations laid down by the resolution of the board for the regulation of the bus business. The complainant was called before the board and warned of the consequences that would follow if his infraction of the regulations continued. He was threatened with a revocation of his permit. No action revoking the permit was however taken. On January 4, 1924, the complainant was convicted in the Municipal Court of Wilmington and fined for having on January 3, 1924, driven his bus in the city limits while the brakes were in bad condition. The complainant made application for a renewal of his permits for the year 1924. On January 2, 1924, the board notified him that it had given long and serious thought to the subject of the renewal and had reached the unanimous conclusion that:

"On account of the number and the seriousness of the reports and charges made to this Department against the reckless and unlawful manner in which busses of your line have been operated during the past year, for the best interest of the traveling public, your operating permits should not be renewed."

He was notified that his 1923 operating permits would be extended until January 15, 1924, at which date they would be revoked.

On January 14 the present bill was filed seeking to enjoin the city from enforcing against the complainant the provisions of the resolution of the Board of Directors of the Street and Sewer Department. A restraining order was issued and thereafter a preliminary injunction. The cause now comes on for final hearing upon bill, answer, oral testimony before the Chancellor, stipulations of the parties and exhibits.

Bill dismissed with costs on the complainant.

Clarence A. Southerland and Ayres J. Stockly, for the complainant.

Caleb S. Layton, City Solicitor, and James R. Morford, Assistant City Solicitor, for the defendant.

OPINION

THE CHANCELLOR

This case is to be treated as one where the directors of the Street and Sewer Department have refused to issue a permit in the first instance. The only questions agitated in the cause concern the validity of the resolution adopted by the Board of Directors of the Street and Sewer Department of the City of Wilmington. The complainant assails that resolution upon two grounds. These are:

(1) The resolution in question is beyond the charter power of the City of Wilmington, is wholly unreasonable, and is therefore void. (2) It is unconstitutional as attempting to confer unrestrained and arbitrary power upon the Street and Sewer Department.

These points will be disposed of in the order of their statement.

First. Is the city possessed with corporate power to legislate upon the subject matter of the resolution? The answer to this question, of course, turns upon the extent of power which the legislative authority of the State has seen fit to confer upon the city, for a municipal corporation has no power except such as is expressly conferred by the Legislature, or is necessarily or fairly implied as incident to or essential for the attainment of the purposes expressly declared. This principle is elementary. It is laid down in innumerable cases and has received recognition in this State in Coyle v McIntire, 12 Del. 44, 7 Houst. 44, 30 A. 728, 40 Am. St. Rep. 109, and Gray v. Wilmington, 16 Del. 257, 2 Marvel 257, 43 A. 94.

Turning to the statutory charter of the City of Wilmington, it appears that the act of 1883 (Laws of Delaware, vol. 17, c. 207) confers on the Council power to enact ordinances for many enumerated purposes and among these is found the power to enact ordinances "generally to prescribe and regulate the use of the highways, streets, squares, lanes and alleys of the city, and to have and exercise control over the same." Section 31. The act of April 20, 1887 (Laws of Delaware, vol. 18, c. 188), created the Board of Directors of the Street and Sewer Department, upon which was conferred "entire jurisdiction and control within the limits of said city of the streets, squares, lanes, roads or alleys thereof, said jurisdiction and control to extend from building line to building line." Section 1. This act further provides that the said board shall "have the same rights and powers, and be vested with the same authority over the said streets, squares, lanes, roads," etc., " * * * as are now held and exercised by the Council' of the * * * city * * * under the charter, laws, ordinances and regulations appertaining to or in any manner made for the government of said city." Id.

In referring to the act just mentioned, the Supreme Court of this State in Bullock's Adm'r. v. Wilmington City Railway, 21 Del. 209, 5 Penne. 209, 64 A. 242, said:

"The purpose and object of the Street and Sewer Act was manifestly to take the whole subject-matter of the construction, and also the regulation of the use of the streets," etc., "from the Council,' * * * and at the same time to give the street and sewer commissioners [directors] the power to see that the streets of Wilmington should be so constructed and used, so far as it lay within the power of the municipality, in a manner which would make them both fit and safe for the uses of a public highway."

It appears from the foregoing, therefore, that the legislative authority to the Street and Sewer Department respecting the streets of the city is generally to prescribe and regulate their use and to exercise entire jurisdiction and control over the...