|
July 20th, 1959.
<br />
<br />At a called meeting of the City Council, held on July Z0th, .t959, there .were present:
<br />
<br />B.W. B~ker, A.C. Bartlett, W.R. Breedlove, R.B. Seward, R. Irvine Smith,
<br />George Ro Walker, H. E. Weiseman, J.S. Livesay, Jr., City Attorney.
<br />
<br /> The following call for the meeting was read:
<br />
<br />Chamber, au 7:30 P.M.,
<br />'Portsmouth, Va., 1951,
<br />
<br /> "You are requested to attend .~ called meeting of the City Council, in the Council
<br /> on Monday, July 20th, 1959, to consider amending Section 2-16 of the Code of the City of
<br />at the request of Cotu~cilman.Breedlove. By Order of the President."
<br />
<br />Breedlove;
<br />City Code,
<br />
<br /> At the request of the Mayor, the Clerk read the following letter from Councilman
<br />addressed to the Mayor:
<br />
<br /> "Pursuant To the Rules of Order of the Council as set out in Section 2-4 of the
<br /> I ask that you exercise your prerogative as President of the Council and call a special meeting of
<br /> the Council for Monday July 20, 1959, at 7:30 b~clock p.m., for the'-purpose of considering, a~d if the Council
<br /> be so inclined, placing on first reading an ordinance to repeal section 2-16 of the City Code and re-ordain
<br /> same by deleting therefrom that portion of the ordinance as it now exists, to-wit: "And provided, further, that
<br /> no special appropriation not provided for in the annual budge~ shall be passed except by a vote of two-thirds of
<br /> the members elected to the City Council." I have asked you to call this special meeting because I am fully con-
<br /> vinced that this quoted portion of the ordinance is unconstitutional, ms in conflict with the existing State
<br /> Statutes and is an improper extension of municipal powers mn that it is not specifically granted in the City
<br /> Charter. These reasons differ with those expressed by the City Attorney in his letter of J uae 23 addressed to
<br /> you and %he other council members ~n that the City Attorney's opinion is that the recently enacted Perrow Legis~
<br /> lation invalidated the quoted language, whereas it is my opinion that the quoted language was already invalid
<br /> prior to the Perror Legislation because it was zn conflict with the State Constitution, State Statutes and City~
<br />Charter.
<br /> !
<br /> It is ironic that this portion of the City Code has bee~ in force for approximatel~
<br /> 30 or more years without challenge, notwithstanding the fact that the prohibitions contained in the Constitution,
<br /> State Statutes and City Charter are clear on the subject.
<br /> All Council members upon taking office executed the oath required by the City Char~
<br />er, Chapter III, Section 14, to support and defend both the United States and State Constitutions. I feel it is~
<br />now our duty to correct erroneous minicipal legislation which has existed for so many years that if has been ac
<br />~c~pted by the present cour~cil and our predecessors as valid legislation.
<br /> As President of the Council you are now a defendant along with the City and me in~
<br /> petition for a declaratory judgment, the crux of which is the validity of our City Code, Section 2-16. It mat~
<br /> a
<br />ters not whether the ordinance is under attack becanse of the provisions of the Perrow Legislation or for the
<br />reasons which I have stated and which also are mentioned in the petition for declaratory judgment. I firmly be -
<br />lieve that if the declaratory judgment suit proceeds to £inality, the Court will not even consider the effect
<br />of the Perrow Legislation upon the ordinance but will hold that quoted portion of the ordinance invalid from~the
<br />date of its enactment. For these reasons, my oath of office requires that I bring the matter ~o your attention sc
<br />that the Council may correc~ this error.
<br /> If the Council receives favorably the ordinance I intend 5o present a~ this special
<br /> meeting, it will cause the question raised by the declaratory judgment suit to become moot, and upon proper ap-
<br /> plication, the suit can be dismissed.
<br /> For the same reasons outlined herein our present Code Section 8-1.21 is also invali
<br /> and the amendment thereto offered by Councilman Bartlett on July 14th, 1959, is in accord with the provzsions
<br /> of the State Constitution, State Statutes and City Charter and this should also be reconsidered by the Council
<br /> ~$~an early date.
<br />
<br /> Mr. Breedlove made a statement regarding his reasons for asking the Mayor to call
<br />this meeting, and explained in this statement, on file in the City Clerk's office, why he had reversed his po-
<br />sition as to the validity of Code Section 2-16, and stated that~ his reasons were that Section 123 of the
<br />Constitution of Virginia, Section 1S-412 of the Code of Vieginia and Section 17 of Chapter III of the Charter
<br />of the City of Portsmouth all require only a simple majority vote of all members elected ~o the Council for
<br />approval of appropriations and that the Municipal Ordinance Section 2-16 is zn conflict amd therefore unconsti-
<br />tutional.
<br />
<br />Mr. Breedlove presented the following ordinance and moved that it be placed on
<br />
<br />first reading:
<br />
<br />"AN ORDINANCE TO A~END SECTION 2-16 OF CHAPTER 2 OF THE CODE OF THE CITY
<br />OF PORTSMOUTH, VIRGINIA, 1951, AS A~ENDED, CONCERNING APPROPRIATION
<br />ORDINANCES OR RESOLUTIONS"
<br />
<br /> ~r. Bartlett stated that he would like to have an opportunity ~o confer wit~ his
<br />attorney, Mr. Bain, to determine the effect of the proposed ordinance on the case pending regarding 'declaratory
<br />judgment' on this Section~ of the Cede.
<br />
<br /> Motion of Mr. Weiseman that the matter be tabled until the Council has time to
<br />study it, was adopted, and by the following vote:
<br />
<br />Ayes: Baker, Bartlett, Breedlove, Seward, Smith, Walker, Weiseman
<br />Nays: None '~
<br />
<br />On motion adjourned.
<br />
<br />City Clerk.
<br />
<br />Approved -
<br />
<br />
<br />
|