Gray v. Mayor of Wilmington

Superior Court of Delaware

Gray v. Mayor of Wilmington

16 Del. 257

DecidedMay 15, 1896

StatusPublished

This text of 16 Del. 257 (Gray v. Mayor of Wilmington) is published on Counsel Stack Legal Research, covering Superior Court of Delaware primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

Gray v. Mayor of Wilmington, 16 Del. 257 (Del. Ct. App. 1896).

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Opinion

Lore, C. J.,

delivered the opinion of the Court.

The exception relied upon is that there was no authority vested by the charter of Wilmington, in the City Council to impose or require a license from persons engaged in the sale of milk. The authority vested in the City Council by the City Charter is a provision which forms a distinct and independent sentence, authorizing the city to provide against the adulteration of milk or cream sold, or bought to be sold, in the said city and provides for the proper inspection of the same.

That is all that we find, or that has been shown, in the charter relating to the subject, and it confines the right of the City Council to provide against adulteration and for proper inspection. We do not see, and certainly it has not been shown, that the right to demand a license is in any way a necessary part of that power. It certainly is not expressly granted, nor can we see how, by any necessary implication, that power could be implied. In fact, we think that on the face of the ordinance, it appears that it is not necessary, and unless expressed, we must hold that the power does not exist; under the act the entire machinery for the inspection of the milk and for preventing its adulteration is restricted in its operation so as to except all persons selling less than twenty quarts. Therefore on the face of the ordinance it is shown that the power is not necessary. In order for us to say it is necessary it ought to be either express or by necessary implication; we think it is not either. ■

Then, there is this further objection. Here is a general ordi[270]*270nance for an entire class of people, which licenses those of them who sell more than twenty quarts and exempts them who sell less than twenty quarts. Section 31 of the municipal charter says, “ The Council shall not have power to pass any ordinance exempting any person from the operation of any ordinance or municipal regulation.” They cannot discriminate. We think both judgments ought be reversed, and so order.

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Lore, C. J.,

delivered the opinion of the Court.

The exception relied upon is that there was no authority vested by the charter of Wilmington, in the City Council to impose or require a license from persons engaged in the sale of milk. The authority vested in the City Council by the City Charter is a provision which forms a distinct and independent sentence, authorizing the city to provide against the adulteration of milk or cream sold, or bought to be sold, in the said city and provides for the proper inspection of the same.

That is all that we find, or that has been shown, in the charter relating to the subject, and it confines the right of the City Council to provide against adulteration and for proper inspection. We do not see, and certainly it has not been shown, that the right to demand a license is in any way a necessary part of that power. It certainly is not expressly granted, nor can we see how, by any necessary implication, that power could be implied. In fact, we think that on the face of the ordinance, it appears that it is not necessary, and unless expressed, we must hold that the power does not exist; under the act the entire machinery for the inspection of the milk and for preventing its adulteration is restricted in its operation so as to except all persons selling less than twenty quarts. Therefore on the face of the ordinance it is shown that the power is not necessary. In order for us to say it is necessary it ought to be either express or by necessary implication; we think it is not either. ■

Then, there is this further objection. Here is a general ordi[270]*270nance for an entire class of people, which licenses those of them who sell more than twenty quarts and exempts them who sell less than twenty quarts. Section 31 of the municipal charter says, “ The Council shall not have power to pass any ordinance exempting any person from the operation of any ordinance or municipal regulation.” They cannot discriminate. We think both judgments ought be reversed, and so order.

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Bluebook (online)

16 Del. 257, Counsel Stack Legal Research, https://law.counselstack.com/opinion/gray-v-mayor-of-wilmington-delsuperct-1896.