Vitelli v. Mayor and Council of Wilmington

CourtSuperior Court of Delaware
Writing for the CourtHARRINGTON, J.
Citation39 Del. 336,199 A. 283
PartiesJOSEPHINE VITELLI, alias Josephine Martin, and ALFRED VITELLI, d. b. a., v. THE MAYOR AND COUNCIL OF WILMINGTON, a municipal corporation of the State of Delaware, p. b. r. JACOB FABER, d. b. a., v. THE MAYOR AND COUNCIL OF WILMINGTON, a municipal corporation of the State of Delaware, p. b. r
Decision Date31 March 1938

199 A. 283

39 Del. 336

JOSEPHINE VITELLI, alias Josephine Martin, and ALFRED VITELLI, d. b. a.,
v.

THE MAYOR AND COUNCIL OF WILMINGTON, a municipal corporation of the State of Delaware, p. b. r. JACOB FABER, d. b. a.,
v.

THE MAYOR AND COUNCIL OF WILMINGTON, a municipal corporation of the State of Delaware, p. b. r

Superior Court of Delaware, New Castle County

March 31, 1938


[199 A. 284]

Superior Court for New Castle County, Nos. 138 and 198, September Term, 1936.

Appeals from judgments imposing fines, entered by the Municipal Court of the City of Wilmington, in prosecutions for the violation of certain sections of the Zoning Ordinance of that City.

The proceedings in both the Municipal Court and in this court were by informations filed in the name of James R. Morford, City Solicitor, by Thomas Herlihy, Jr., Assistant City Solicitor.

The informations filed in both the Municipal Court and in this court against Josephine Vitelli, alias Josephine Martin, and Alfred Vitelli, were criminal in form, and, in substance, alleged that on the Nineteenth day of June 1936, in violation of the Building Zone Ordinance of the City of Wilmington, they "with force and arms at the City of Wilmington aforesaid, in the County aforesaid, ----- unlawfully did use a part of certain premises", therein specified "for the purpose of a retail business, not within the class of 'customary home occupations', to-wit for a candy, cigar and confectionery store", against the form of an ordinance of "The Council" of "The Mayor and Council of Wilmington" in such case made and provided, and against the peace and dignity of the State.

Informations, similar in form and concluding in the same manner, were, also, filed against Jacob Faber, both in the Municipal Court, and in this court, on appeal. They alleged, in substance, that on March 11th, 1936 Jacob Faber "unlawfully did reconstruct or alter the dwelling situated at 700 West 24th Street, for the purpose of housing two families, said dwelling being located in a Residence A. District, and said reconstruction or alteration not being in conformity with Section 7 of the Building Zone Ordinance in that the parcel, lot or piece of land on which said dwelling is situate is not of sufficient area, so as to be occupied or designated, or arranged to be occupied by more than one family or one house-keeping unit, per 5,000 square feet lot area" etc.

After the charges had been duly made against the defendants below for violating the provisions of the Zoning Ordinance of the City of Wilmington, the Municipal Court of that city issued warrants for their arrest in both cases. They were apprehended and were subsequently tried, found guilty of violating the Building Zoning Ordinance of the City and fined by that court. The sentences imposed by the court, also, provided for imprisonment in default of the payment of the said fine and costs.

The defendants in those proceedings appealed to this court and, after the informations above referred to had been filed against them, filed pleas to the jurisdiction of the court.

Each of these pleas alleged, in substance, that on the date of the alleged violation of the said Zoning Ordinance of the City of Wilmington, there was no valid Zoning Ordinance of that city.

The Assistant City Solicitor moved to strike out both of these pleas. Under these motions, it was agreed by counsel that the court should consider whether a proceeding before the Municipal Court of the City of Wilmington for the violation of a city ordinance was a criminal proceeding, or a civil action, having certain criminal aspects.

The following provisions of the Charter of the City of Wilmington appeared in the chapter of the Revised Code of 1935, dealing with the Municipal Court of that City:

Section 2414. "The said Municipal Court [of the City of Wilmington] shall have sole and exclusive jurisdiction to inquire of, hear, try, and finally determine all those criminal matters and offenses enumerated in the thirteenth section of the fourth article of the Constitution, and committed within said City, and to punish all persons convicted of said offenses, or any of them, agreeably to the laws of this State; and, together with the Judge of said Municipal Court, shall have sole original jurisdiction to inquire of, hear, try, and determine all offenses which shall be committed within said City against any of the laws, ordinances, regulations or constitution of said City, and to punish the offender or offenders as by the said laws, ordinances, regulations, or constitution shall be prescribed; and also to impose fines according to law, and to levy the same, and to award process, take recognizance for keeping the peace for being of good behavior, and for appearance, or otherwise, or to commit the prisoner, as occasion shall lawfully require, without being accountable to the State for any fines or amercements to be imposed for the said offenses, or any of them, except such as are, or shall be, by law, made payable into the State Treasury for offenses against the State."

After giving the Municipal Court jurisdiction in certain misdemeanors therein specified, the same section further provided: "The proceedings in all such cases in the said Municipal Court shall be without indictment by Grand Jury, or trial by petit jury, with the right of appeal as provided in Article IV, Section 30, of the Constitution of this State."

Section 2417. "All prosecutions brought in said Court or before the City Judge for breaches of any of the municipal laws, ordinances or regulations of said City, shall be in the name of The Mayor and Council of Wilmington."

Section 2418. "Prosecutions in the said Municipal Court shall be by information, without indictment by grand jury or trial by petit jury."

Section 2419. "The Solicitor of said corporation for the time being shall be ex-officio the prosecuting officer in the said Municipal Court, provided that the Attorney-General of the State shall have the right to prosecute in person, or by his deputy. * * * The City...

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1 practice notes
  • Frabizzio v. State, 216
    • United States
    • Superior Court of Delaware
    • May 28, 1948
    ...a fine is a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. Vitelli v. Wilmington, 39 Del. 336, 9 W.W.Harr. 336, 344, 199 A. 283. The payment required of this defendant fits that definition exactly, and the fact that the amount was less t......
1 cases
  • Frabizzio v. State, 216
    • United States
    • Superior Court of Delaware
    • May 28, 1948
    ...a fine is a pecuniary punishment imposed by a lawful tribunal upon a person convicted of a crime or misdemeanor. Vitelli v. Wilmington, 39 Del. 336, 9 W.W.Harr. 336, 344, 199 A. 283. The payment required of this defendant fits that definition exactly, and the fact that the amount was less t......

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