CHAPTER 135

WEIGHTS AND MEASURES--COAL

AN ACT TO AMEND CHAPTER 82 OF THE REVISED CODE OF THE STATE OF DELAWARE, 1935, AS AMENDED, RELATING TO WEIGHTS AND MEASURES, BY SPECIFYING AND DEFINING SOLID FUELS COVERED HEREIN AND THE LEGAL STANDARD TON OF SOLID FUELS AND THE SALE OF SAME BY WEIGHT IN THIS STATE, AND PROVIDING FOR THE FURNISHING OF WEIGHT OR DELIVERY TICKETS, AND THE REWEIGHING OF SAME, AND FOR THE APPOINTMENT OF LICENSED WEIGHMASTERS IN CONNECTION THEREWITH, AND PROVIDING FOR THE MARKING OF ALL VEHICLES TRANSPORTING SOLID FUELS, AND PROVIDING FOR THE PLACE OF WEIGHING SOLID FUELS BROUGHT INTO THE STATE BY MOTOR TRUCK, AND PROVIDING FOR THE ISSUANCE AND SIGNING OF CERTIFICATES OF ORIGIN FOR SOLID FUELS BROUGHT INTO THE STATE BY MOTOR TRUCK, AND PROVIDING FOR THE APPOINTMENT OF DEPUTY REGULATORS OF WEIGHTS AND MEASURES FOR THE SEVERAL COUNTIES AND FURTHER PROVIDING FOR THE ENFORCEMENT AND PENALTIES FOR VIOLATIONS OF THIS ACT RELATING TO THE TRANSPORTATION, SALE AND DELIVERY OF SOLID FUELS WITHIN THIS STATE.

Be it enacted by the Senate and House of Representatives of the State of Delaware, in General Assembly met:

Section 1. That 3438, Section 20, Chapter 82, Revised Code of Delaware, 1935, be amended by striking out all of said 3438, Section 20, and substituting in lieu thereof the following:

3438. Section 20. Coal; Standard Ton; Sale of Ton of Less Than Standard Weight a Misdemeanor; Penalty:--The legal stand and ton for coal in this State shall be two thousand pounds avoirdupois weight; any coal dealer or other person selling or sending out into the highways, lanes, or streets of this State, or any city or town of this State, or otherwise disposing of a load of coal containing less than two thousand pounds avoirdupois for a ton, except when delivering fractions of a ton, or, if delivering a fraction of a ton and said fraction of a ton contains less relatively than the legal standard of two thousand pounds avoirdupois, the dealer or other person so acting shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be compelled to pay a fine of fifty dollars.

Section 2. That 3440. Section 22, of the Revised Code of Delaware, 1935, be amended by striking out all of said 3440, Section 22 and substituting in lieu thereof the following:

3440. Section 22 (1) Definitions:--Wherever used in this Act, "Solid Fuel" shall mean and include anthracite, semi-anthracite, bituminous or semi-bituminous coal, lignite coal, briquettes, charcoal, boulets, coke, gas house coke, petroleum coke, petroleum carbon or any other manufactured or patented fuel not sold by liquid or metered measure.

"Person" shall mean and include an individual, partnership, association of individuals, corporations, or other form of business enterprise.

(2) Sale of Solid Fuel:--Solid fuel shall be sold by weight. No person shall sell or deliver or attempt or offer to sell or deliver, or cause, to permit to be sold or delivered, any solid fuels less than two thousand pounds by weight to the ton of solid fuel, or a proper proportion thereof, in quantities of less than a ton.

(3) Duty of Regulators to Inspect; Tolerance Permitted:--It shall be the duty of the Regulator of Weights and Measures for each County to inspect at least once in every three months the scales

used by every dealer in solid fuels maintaining a place of business in the County, and to make periodical inspections and tests of the weights of deliveries of solid fuel of each dealer therein delivering solid fuels, to a purchaser or purchasers within the County, provided, however, that the said Regulator of Weights and Measures, in testing a load of or other quantity of solid fuel shall not compel such dealer or the dealer's agent or employee to go an unreasonable distance to a testing scale but shall use the nearest platform scales that are available and equipped for that purpose.

In all tests or inspections of the weight of solid fuels, a tolerance of two per centum of the weight thereof shall be permitted to allow for variations in scales and conditions not within the control of the dealer, provided, however, that such tolerance shall in no case exceed one hundred and seventy-five pounds for any load of solid fuels.

Section 3. That 3441, Section 23, of the Revised Code of Delaware, 1935, be amended by striking out all of said 3441, Section 23, and substituting in lieu thereof the following:

3441. Section 23. (1) Unlawful to sell except by Weight; Delivery Ticket; Contents of; Exception; Licensed Weighmaster and Qualifications; Certificate of Origin for Solid Fuel Brought into the State by Motor Truck; Place of Weighing and Re-Weighing Solid Fuel; Penalties for Violations:--All solid fuels shall be sold by weight and shall be weighed by a licensed Weighmaster appointed by the Regulator of Weights and Measures of the County. No person shall sell or deliver, or cause or permit to be sold or delivered, any solid fuels without each such sale or delivery being accompanied by a delivery ticket of a licensed Weighmaster, said delivery ticket to be given to the purchaser or purchaser's representative, or to an agent of the person receiving such solid fuels, and in all cases an exact copy or duplicate of the ticket delivered to the purchaser shall be retained by the person making such sale or delivery. On said delivery ticket there shall be distinctly and indelibly stated the quantity or quantities in pounds of the solid fuel contained in the cart, wagon, truck, or other vehicle or container used in making delivery, the date of weighing, the date of sale, the name and address of the seller, the name and address of the purchaser, together with an impression of the official seal or stamp of the Weighmaster who performed the weighing. The tare and gross weights of the vehicle transporting solid fuel and the net weight of each delivery must be determined by the licensed weigh-master on the same scale, and in no case shall a licensed Weigh-master certify to the net weight of any solid fuel on any weight or delivery ticket, if, between the time of the taking of the tare weight, or weight of the vehicle without the load, and the time of taking of the gross weight or weight of the vehicle with the load, said vehicle shall have left the place or premises where such scale is located. Any Regulator of Weights and Measures of the several Counties, deputies, or other law enforcing officers of the State, or of any County, city, or other incorporated town, who finds any quantity of solid fuel ready for or in the process of delivery, may direct the person in charge of the vehicle carrying said solid fuel to convey the same to an available stationary scale suitable for weighing the vehicle transporting the solid fuel, located in the State of Delaware, and operated by a licensed Weighmaster, for the purpose of weighing and determining the net weight of the solid fuel, in accordance with the provisions of this Section and the next preceding section. It shall be unlawful for any seller or driver or other person in charge of the vehicle containing such solid fuel, or from which such solid fuel has been unloaded, upon the request and direction of any Regulator of Weights and Measures, or his deputies, or other law enforcing officers of the State, County, city or other incorporated town, to refuse and fail to take the said vehicle and solid fuel to a scale operated by a licensed Weighmaster to permit the said solid fuel and vehicle to be weighed.

The provisions of this section and the next preceding section shall not apply to solid fuel sold for delivery to one destination by the entire railroad car or cargo direct from the vessel or railroad car containing the same and accepted by the purchase_ on the original bill of lading, railroad freight bill or invoice, as proof of weight; nor shall the provisions of this section and the next preceding section apply to sales of solid fuel in quantities of fifty pounds or less in paper bags, sacks, or packages; provided, such bags, sacks, or packages in which the solid fuel is sold or delivered are plainly and conspicuously marked with the correct weight of the contents.

(2) The Regulator of Weights and Measures of each County shall appoint as a licensed Weighmaster in and for the County, any person who shall possess the qualifications hereinafter provided and shall make application for such appointment, assigning to each licensee an official number. Any person shall be appointed a Weigh-master who shall be a person of good character, capable of and experienced in the operation of a stationary scale, and shall have been a resident of this State for not less than six months prior to his appointment, and who shall own and be engaged in, or shall be an employee or agent of a firm or corporation owning and engaged in, the business of conducting and maintaining a yard for the sale and delivery of solid fuels, with storage facilities and delivery equipment, including a stationary scale with a minimum capacity of five tons, and duly licensed to transact such business within this State. Licenses shall be issued to individuals only and not to firms or corporations, but any firm or corporation may have as many of their members or employees licensed as they may desire. The term of appointment of each Weighmaster shall be three years, but any Weighmaster may have his license revoked by the Regulator of Weights and Measures by whom he was appointed, for misconduct in office, dishonesty, incompetency, violation of a provision of this Act, or in case any such Weighmaster shall cease to possess the qualifications specified for his original appointment. For each appointment so made, the Regulator of Weights and Measures shall receive from the licensee a fee of $5.00 for the use of the State. All fees so received shall be paid over to the State not later than the tenth of the month following the month when received. Each Weighmaster shall provide himself at his own expense, with a seal or stamp containing on the outer margin, his name, the name of the County in which he is licensed, followed by the word "Delaware," and shall also contain the word "Weighmaster" and his official number, together with a date indicator to show the date the seal or stamp was used by the Weighmaster on each weight or delivery ticket. No Weighmaster shall delegate his authority to another person.

No Weighmaster shall receive any salary or other compensation from the State for the performance of his duties, but each Weighmaster may charge and retain for the owner of the scale used for weighing, a fee not exceeding twenty-five cents for each weighing performed for any person other than the owner of the scale, said fee to be paid by the dealer, trucker or seller of the solid fuels so weighed. A separate fee may be charged by a Weigh-master for each delivery of solid fuel requiring a separate weight ticket. A licensed Weighmaster shall keep a permanent record of all vehicles weighed by him other than the vehicles owned and operated by the owner of the scale, showing the date, the name and address of the seller, the State registration number of the vehicle, and the tare and gross weight of the delivery, such records to be available at all times during business hours for the inspection of the Regulator of Weights and Measures of the County wherein the scale is located. All persons engaged in the sale and delivery of solid fuel and duly licensed to transact such business in the State of Delaware, equipped with a stationary scale and employing a licensed Weighmaster, shall, during business hours, permit the use of such scale for the purpose of weighing vehicles_ transporting solid fuels, in addition to those vehicles operated in his own business, in order to provide weighing facilities for carrying out the provisions of this section and the next preceding section. Said person shall also furnish, without charge, the necessary space within his yard to unload and reload the solid fuel from and to the vehicle containing such solid fuel to be weighed, provided, however, that he shall not be required to supply any labor in connection with either the unloading or reloading of the solid fuel so weighed. All vehicles used in the transportation of solid fuel shall be conspicuously marked with permanent letters on the exterior of the right and left sides thereof in plain view and easily discernible, the name and address of the registered owner. The letters shall be at least three inches in height and not less than one-half inch in width.

(3) The word "Certificate of Origin" when used in this section means a signed certificate containing the following:

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a. Name and location of, and the name of the owner or op-

erator of the breaker, colliery, or other place of production where the solid fuel to which it refers is produced or if the solid fuel to which it refers comes from a yard, pocket or other place of storage where solid fuel is commingled and stored outside the State other than a colliery, breaker or other place of production, then the name of the owner or operator of the yard, pocket or other place of storage.

b. The kinds, size and weight of the solid fuel.

c. The name and address of the person claiming ownership of said solid fuel.

d. The name and address of the driver of the truck hauling said solid fuel and the State Registration number of the truck.

e. The name and address of the person or persons to whom said solid fuel is to be delivered, or in the event that said solid fuel is not intended for delivery to any particular person or persons, the name and address of the owner and yard to which it is to be taken.

The Certificate shall be filled in and prepared by typewriter, ink, or indelible pencil, and shall be signed in ink or indelible pencil by the person who is operating the truck, and by the person or his duly appointed agent who is the owner of the breaker, colliery, place of production, yard, pocket or other place of storage, as the case may be, where the solid fuel to which the Certificate of Origin refers, is loaded on the truck outside the State of Delaware.

It shall be unlawful for any person to haul, transport, purchase, sell or deliver in the State of Delaware, any solid fuel brought into the State from outside the State by motor truck except in accordance with the provisions of this section. Such solid fuel shall be accompanied at all times until delivered, by a Certificate of Origin and a duplicate original of such Certificate of Origin shall be filed as hereinafter provided.

Every driver of a motor truck or other vehicle bringing solid fuel into the State of Delaware from outside the State, for sale and delivery within the State, shall, upon entering the State, proceed forthwith before delivery of the load of solid fuel, to the nearest available stationary scale, suitable for weighing the tare and gross weight of the vehicle, to the place or places of each delivery, to have the solid fuel weighed by a duly licensed Weighmaster in accordance with the requirements of this Section and the next preceding section, and shall then and there file with said licensed Weighmaster a duplicate original of the required Certificate of Origin. No licensed Weighmaster shall weigh up any such load of solid fuel and sign a weight ticket therefor unless and until a duplicate original of the Certificate of Origin for such solid fuel shall be filed with and retained by the Weighmaster in the form required by this section. Such Weighmaster upon signing or using his official stamp on such weight ticket shall make a notation thereon of the number and the date of the Certificate of Origin, and shall also sign or officially stamp and date the Certificate of Origin accompanying the load of solid fuel. Nothing herein contained shall be construed to require the weighing in the State of Delaware of any load of solid fuel which is merely being transported through the State, but the driver of any truck transporting such load of solid fuel shall, in any event, file a duplicate original of the required Certificate of Origin with a duly licensed Weighmaster at the nearest available scale after entering the State. Where the solid fuel transported by motor truck from outside the State of Delaware is delivered to a coal yard in the State and unloaded for storage, the driver of said motor truck shall forthwith file with the owner of said yard, or his representative, the duplicate original Certificate of Origin required for each delivery made and the said owner or

his representative shall forward weekly to the Regulator of Weights and Measures for his respective County the Certificates of Origin covering all receipts of solid fuel delivered to said yard for storage during the preceding week.

The Certificate of Origin as herein provided shall be issued only on forms to be supplied upon application therefor to the Secretary of the State of Delaware. The Certificates shall be serially numbered and issued in duplicate, consecutively. A nominal charge to cover the cost of supplying such forms may be made by the Secretary of State. Said Certificates shall be non-transferrable and any person who has in his possession, or who files with a licensed Weighmaster, a false Certificate of Origin, shall be deemed guilty of a violation of this Act. The Secretary of the State of Delaware shall issue such blank Certificates of Origin to any person who is the owner or operator of a colliery, breaker, place of production, or who is the owner or operator of a yard, pocket or other place of storage outside the State of Delaware upon application therefor, but such person shall show the necessity for the issuance of said Certificate and shall furnish proof to the Secretary of State that all solid fuel produced or stored is not stolen and is legally acquired at its source. The Secretary of State shall monthly send a revised list of all Certificates of Origin issued by him to the Regulator of Weights and Measures of each County, who shall, in turn, send similar lists to all licensed Weighmasters appointed by him. All licensed Weighmasters shall keep a written record of all Certificates of Origin received by him at the time of weighing any solid fuel brought into the State. Said Weighmasters shall weekly forward to the Regulator of Weights and Measures of his respective County the Certificates of Origin filed with him for the weighing of solid fuel during the preceding week. The Regulator of Weights and Measures of each County shall retain for his official record said Certificates of Origin. Any person directly interested in the sale, distribution, hauling or transportation of solid fuel in the State of Delaware, and any association composed of persons who are so interested, shall be entitled to sue for and to have injunctive relief in any Court of the State of Delaware having jurisdiction over the parties against actual or threatened violations of this section or the next preceding section. The Regulator of Weights and Measures shall have power to adopt regulations, not inconsistent with this Chapter, to make effective the provisions of this section and the next preceding section of this Chapter.

For the purpose of carrying out the provisions of this section and the next preceding section pertaining to the sale of solid fuels, the Regulator of Weights and Measures of the several Counties may appoint a deputy or deputies, who shall have full power and authority to perform the duties of his office in so far as those duties pertain to the sale of solid fuels and the enforcement of the provisions set forth in this section and the next preceding section pertaining, thereto. The appointment of a deputy shall be recorded in the office of the Recorder of Deeds in and for the county in which the Regulator of Weights and Measures and the deputy are appointed. Said deputy shall be sworn, or affirmed, to perform the duties of his office faithfully and impartially. He shall, within thirty days from his appointment, give bond to the State, with sufficient surety, to be approved by the Governor, in the sum of One Thousand Dollars, conditioned for the faithful performance of the duties of his office. Any deputy appointed under this section shall not receive compensation from the State of Delaware for his services in this capacity. All such deputies shall be under the control of the Regulator of Weights and Measures by whom appointed, which Regulator shall have the right to revoke the appointment at any time without cause.

Any person, firm, or corporation who shall violate any provisions of this and the next preceding section shall forfeit and pay a fine of not less than Fifty Dollars nor more than One 1-11.4ndred Dollars, or be imprisoned for a term not exceeding thirty days, or both, in the discretion of the Court, for the first offense, and forfeit and pay a fine of not less than One Hundred Dollars nor more than Two Hundred and Fifty Dollars, or be imprisoned for a term not exceeding three months, or both, in the discretion of the Court, for each subsequent offense.

If any clause, sentence, paragraph or other part of such sections as amended or added, as the case may be, by this Act shall for any reason be adjudged by any Court of competent jurisdiction to be invalid, such judgment shall not affect, embarrass and invalidate the remainder thereof, but shall be confined in its operation to the clause, sentence, paragraph, or part thereof directly involved in the controversy in which such judgment shall have been rendered.

No provision of this section shall apply or be construed to apply to foreign or interstate commerce except in so far as the same may be effective pursuant to the United States Constitution and to the laws of the United States enacted pursuant thereto.

This Act shall take effect immediately. Approved March 30, 1939.