Pace v. The Mayor and Council of Wilmington

• Decision Date: 27 April 1948
• Docket Number: 53
• Citation: 58 A.2d 742,44 Del. 319
• Court: Delaware Superior Court
• Parties: DANIEL DE PACE, Defendant Below, v. THE MAYOR AND COUNCIL OF WILMINGTON

58 A.2d 742

44 Del. 319

DANIEL DE PACE, Defendant Below, v. THE MAYOR AND COUNCIL OF WILMINGTON

No. 53

Superior Court of Delaware, New Castle

April 27, 1948

Victor J. Colombo for defendant below.

Charles L. Paruszewski, Assistant City Solicitor, for the Mayor and Council of Wilmington.

PEARSON J., sitting.

OPINION

PEARSON, J.:

The Municipal Court of the City of Wilmington found defendant guilty of violating a parking regulation and imposed a fine of $ 1 and costs. Defendant brought this certiorari proceeding, stating, for his exceptions, that the regulation is arbitrary and unreasonable and therefore invalid, and that the Municipal Court erred in holding it reasonable and valid.

The regulation is a resolution of the Street and Sewer Department of Wilmington, adopted January 27, 1941. It reads thus:

"No person shall park a vehicle on any day on any street in the City of Wilmington for a period of time longer than one hour between the hours of 3 A. M. and 6 A. M., except physicians when actually on emergency calls."

By statute, the Street and Sewer Department is given "entire jurisdiction and control" over the streets of Wilmington, and the power to prescribe and regulate the use of the city streets (with exceptions not relevant here). Cutrona v. Mayor etc., of Wilmington, 14 Del. Ch. 434, 127 A. 421; 18 Laws of Del. Chap. 188; 22 Laws of Del. Chap. 405; 37 Laws of Del. Chap. 135. Defendant concedes that the Department may lawfully make regulations concerning the use of the streets but insists that the present one violates "constitutional safeguards, in that it unwarrantedly restricts his [defendant's] right to use the public streets." He refers to Article 1, Section 7, of the Delaware Constitution, which provides that an accused shall not "be deprived of life, liberty or property, unless by the judgment of his peers or by the law of the land" and the "due process" clause of the Fourteenth Amendment of the Federal Constitution.

The burden is on defendant to establish that the regulation is unreasonable or arbitrary. Borough of Atlanta v. Kirk, 175 Ga. 395, 165 S.E. 69; Hoyne v. Wurstner, (Ohio App.) 43 Ohio L. Abs. 570, 63 N. E. 2d 229. The record contains no evidence on this question. We are left to draw inferences from the provisions of the regulation, in the light of common knowledge.

The purpose of the regulation is obviously to prohibit all-night parking on the city streets. Its provisions seem reasonably designed for that end. Defendant assumes that it is an essential function of public streets to serve as a place for overnight storage of vehicles, and that members of the public have a "fundamental", "inalienable" right to use the streets for this purpose. The authorities hold otherwise; the power to make reasonable restrictions and regulations concerning such parking is well established. District of Columbia v. Smith, 68 App. D.C. 104, 93 F. 2d 650. Borough of Atlanta v. Kirk, supra.

Defendant argues that the regulation is unreasonable in that it applies to all streets, whereas the conditions with respect to parking are different on different streets and in different areas, and therefore, the regulation will not operate uniformly. The objection as stated is far too abstract. Absolute uniformity of operation is, of course non-existent otherwise than in the imagination. Defendant does not point out in what respects the non-uniform operation is unreasonable, nor how his particular case is one as to which it...