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State v. Chudnofsky

Superior Court of Delaware, New Castle County

December 27, 1961

STATE of Delaware
v.
Morris Lewis CHUDNOFSKY.

E. Norman Veasey, Deputy Atty. Gen., for the State of Delaware.

Henry A. Wise, Jr. (of Wise & Suddard), Wilmington, Del., for defendant.

STIFTEL, Judge.

Defendant was convicted of 'Speeding' while operating a passenger car on a dual-highway, known as the Governor Printz Boulevard, between Stockdale Curve and the Philadelphia Pike. His speed was less than sixty miles per hour but greater than forty miles per hour. The posted speed limit signs in the area read forty miles per hour. The forty mile limit had been set by action of the State Highway Department, as set forth in Resolution No. 384, [1] passed

Page 606

on August [54 Del. 345] 12, 1959, pursuant to the authority contained in 21 Del.C. § 4126(b), which provides:

'Whenever the State Highway Department determines upon the basis of an engineering and traffic investigation that any absolute speed hereinbefore set forth is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of a highway, the State Highway Department may determine and declare a reasonable and safe absolute speed limit thereat which shall be effective when appropriate signs giving notice thereof are erected at such intersection or other place or part of the highway.'

Defendant says that he was wrongfully convicted because, he contends, the speed limit in the designated area was 60 miles per hour and not 40 miles per hour. He says this is so by reason of the enactment of an amendment to 21 Del.Code § 4126(a)(1)(D), which became effective on May 24, 1960, prior to the alleged violation and arrest of the defendant on June 27, 1960. Section 4126(a)(1)(D) provides:

'(a) Where no special hazard exists, the following speeds shall be lawful, but any speed in excess of such limits shall be absolute evidence that the speed is not reasonable or prudent and that it is unlawful----

'(1) Passenger vehicles * * *

* * *

* * *

'(D) 60 miles per hour under other conditions on four lane undivided roads and on dual highways.'

Defendant argues, therefore, that the amendment increasing the speed limit on dual highways of this State superseded the administrative action taken previously by the Department to reduce the speed limit on such dual highway. He claims that the Department was required to resurvey the dual highways of Delaware where they had been affected by [54 Del. 346] the increased speed limit, in view of the legislative enactment, so as to have determined whether these previously reduced areas should be adjusted in the light of the new and higher maximum speed limits.

The effect of the amendment was merely to change the numerals '55' to '60' in subparagraph (D) of Section 4126(a)(1). The Legislature pronounced that where the speed limit had heretofore been 55 miles an hour, it would now be 60 miles per hour on dual highways. There was no intention by the Legislature to affect any action taken by the State Highway Department pursuant to subparagraph (b) of Section 4126. If the Legislature had so intended, it could easily have expressed it. Defendant's contention would have negatived any action by the Department under § 4126(b) even if such action had been taken the day before the enactment of the amendment after the required engineering and traffic investigation. The Legislature could not have intended such an unusual result.

Defendant next contends that subparagraph (b) of Section 4126, Delaware Code, is an unconstitutional delegation of power by the Legislature to an Administrative Agency in violation of Section 1 of Article II of the Delaware Constitution, Del.C.Ann., which vests the legislative power ...


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