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~a¥ 24th. 1960
<br />
<br />without th~ municipal corporatiQ~ and may $11, lease, mortgage,
<br />pledge or dispose of such property, subject to such limitations
<br />as may be imposed by ~aw.'
<br />(b) Section.26 of Chapter III, relating to sale of certain types
<br />of property, would nat apply as the subject contract does not
<br />involve a sale.
<br />(c) Section 27 of Chapter III, relating to grants of franchises,
<br />leases, easements, etc., for a period longer than thirty years, is
<br />not pertinent.
<br />(d) Section 28 of Chapter III, also is not pertinent because of the
<br />thirty year provmsion of Section 27 supra, nor would advertisement.for
<br />bids be necessary ~ince the purposes to be accomplished by the contract
<br />are not susceptible to bidding. See Victoris vs. Victoria Ice, etc.
<br />134 Va. 124.
<br />
<br />Turning next to the Constitution of Virginia, the following sections are worthy
<br />
<br />(s) Section 124, concerning use of public properties by certain utility companies is
<br /> of no application to the subject contract as the operations involved are not
<br /> within the pco_pe of the enterprises therein mentioned.
<br />(b) Section 125 is concerned with sales of property by municipalities (not involved here)
<br /> and further provides:
<br />
<br /> '***No franchise, lease or right of any kind to use any snub, public
<br /> property or any other public property or easement of~an~ description,
<br /> in a man. er not permitted to the general public, shall be granted for
<br /> a longer period than thirty years.***'
<br />
<br /> Clearly this section does not apply to the instant case because of the thirty
<br /> year-provision.
<br />
<br />Finally, consideration has been gzven to the following sections of the Code o£ Virgmnia:
<br />
<br />(a) Section 15-727 is almost iden%ical in ~asgu~ge.~9 Section 125 of the
<br /> Constitution and would no~ apply fo~ the ~easons above stated.
<br />(b) Section 15-728, concerning prerequisites to granting of franchises~ has
<br /> no application because no ordinance ~s invQlved and this type of opera-
<br /> tion is not of a bidable nature. Se9 again Victoria vs. Victoria Ice,
<br /> etc., supra, where the Supreme Court oi Appeals held that failure to ob-
<br /> serve directions of this statute as to advertisement did not invalidate
<br /> a franchise, as the Council wzs engaged in a legislative function and
<br /> notice was not essential.
<br />(c) Sectioh 15~--729, concerning advertisements under Section 15-726, is like-
<br /> wise not pertinent for the same reasons.
<br />
<br /> In conclusion, I w~sh to quote from the Victoria Case, supra, the Court's comment
<br />with rgspect to Section 125 of the Constitution:
<br />
<br />=~-u_ ,;~ 'Such restrictions in the Constitution are strictly construed, and un -
<br /> less they clearly apply, the Council in such cases ms governed by gen -
<br /> eral rules.'
<br />
<br /> This rule of construction applie's with equal weight to the above cited sections of
<br />the Code of Virginia and the City Charter.
<br /> From ~he foreEoing analysis, it is my opinion that this 6ontract was effective upon
<br />its execution and delivez-y and that. it is a valid contract which may not be abrogated by the Council without
<br />liability to'B.F. Dmamond.
<br />
<br /> ~{otion of Mr. B~eedlove that ~.th~s 6pinion be received, filed and recorded in the
<br />minutes of the Council, was adopted, without dissenting vote.
<br />
<br />UNFINISHED BUSINESS -
<br />
<br /> 60-126 -
<br />the Council was taken up and read:
<br />
<br />t~ken up and read:
<br />
<br />The following ordinance, plac~d on first reading az the'last meeting of
<br />
<br />"AN ORDINANCE TO CLOSE A PORTION OF BAINBRIDGE AVENGE BETWEEN GEORGE
<br /> WASHINGTON HIGHWAY AND AYLWIN ROAD AND TO DEDICATE RIGHT OF WAY IN
<br /> LIEU THEREOF"
<br />
<br />On motion Qf Mr. Breedlo~e, sai.d ordinance was ado~tgd, and by the following vote:
<br />
<br /> Ayes: Baker, Bartlett, Bre~dlove, Seward, Smith, Walker, Weiseman
<br /> Nays: None
<br />
<br />60-128 - The following ordinance, Placed on first reading at last meeting, was
<br />
<br />"AN ORDINANCE .TO AMEND SECTION 30-132.1 OF THE CODE OF THE CITY OF PORTSMOUTH,
<br />V~RGINIJk, 1951~ AS~A~ENDED, RELATING..TO OArEWAY T~FEIC ON CHESTNUT STREET
<br />BETWEEN GLAETOW .STREET ~ND GEORGE,WASHINGTON H~GHWAY'~
<br />
<br />On motion of Nr. Breedlove, said ordinance was adopted, and by the following vote:I
<br /> Ayes: Baker, Bartlett, Breedlove, Seward, Smith, Walker, Weiseman
<br /> Nays: Non~
<br />
<br />
<br />
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