Town of Dover v. Tawressey

delivered the opinion of the Court.

The defendant was arrested, without warrant, by Stephen Pleasanton, a Town Constable of the town of Dover. He was-taken before Peter L. Cooper, Town Alderman, tried, fined ten-*288•dollars, committed to prison for thirty days in default of payment of the said fine and the costs; upon the charge of “ being engaged in a gathering of persons on one of the streets of the town of Dover, which was an obstruction and interference with the free use of the said streets and the sidewalks.

The charge against the defendant and the proceedings thereunder, were under § 17, Chap. 746, Vol. 19, Laws of Delaware, entitled: “ An Act to Incorporate the Town of Dover,” passed at Dover, March 2, 1893. The charge is made in the terms of the statute and under its provisions.

There are seven exceptions to the record. It is necessary for us to consider only the first exception, viz: “ That it appears by the said record, that the proceedings therein set forth were had and held in the name of the town of Dover, when they should have been in the name of the State of Delaware.”

The offences designated in said Section 17, under which defendant tried, relate to disorderly conduct in violation of the said statute, and come within the general criminal jurisdiction of the State, and in the absence of express authority are to be prosecuted under the law of the State.

We can find in the said section, no express or implied authority, for the town of Dover to proceed thereunder in its own name. Such authority manifestly does not rest in the general corporate powers contained in the charter to sue and be sued, plead and be impleaded, etc., terms quite uniformly used in describing the powers of all corporations, and if it exists at all must be looked for elsewhere. A careful examination of the charter discloses that wherever the Legislature intended that the proceedings should be in the name of the town, such authority was expressly given. Thus it will be seen that under Sections 14 and 19 providing for fines and penalties under ordinances for obstructing streets, the mode of proceeding is prescribed and the town in its own name authorized to prosecute. The'same express provisions appear in Sections 10 and 27 relating to liens and town taxes. While in Section 17, under which these proceedings were had, the offence, and the penalty are *289both prescribed in the statute; the hearing and determination of the case are before the Alderman; who by Section 3 of the Charter, is expressly clothed with all the powers of a Justice of the Peace within the town limits, and 'there is no suggestion that he may proceed in the name of the town.

In the absence of such authority, the prosecution should have been in the name of the State of Delaware, under § 25, Article 6, of the Constitution, which is in the following words, viz:

“ The style of all process and public acts shall be The State of Delaware. Prosecutions shall be carried on in the name of the State.”

Therefore, as the Alderman was not authorized to proceed in the name of the town ; the hearing, judgment, fine and imprisonment in such name, were unauthorized and illegal, and the judgment must therefore be reversed.