Minutes 01/25/1921 - Laserfiche WebLink

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January 25, 1921 be entered upon its books (which I understand it has already done), and borrow the balance, to be refunded when the regular tax rate goes into effect. This will furnish the City with an immediate source of revenue, and will be for the best interest of the wards. Instead of get- ting improvements piece-meal, they will, with their proportion of the bond issue and the loan 'account, be in a position when th~fuil tax rate goes into effect, to carry out a complete and comprehensive program of public improvements. Major Tyler also agrees with me in this opinion, and it seems to meet with the approval of Mr. Smith. "Very truly yours, "Geo. Bosman, City Attorney." On motion, the communications were ordered to be filed. 9th. A recommendation that he be authorized to oflfer Mr. Wm. Smith $25.00 as a compromise, owing to alleged misappropriation by the City of 5000 bricks belonging ~o him and by which he claims that he was damaged in the-~sum of $81.00. On motion, the matter was referred to the Finance Committee. loth. Recommendation that he be ~thor~zed to direct the Virginia Railway & Power Co. to lower its rails on Sixth Ave. where they project above grade; to put in sufficient ballast on its tracks to permit' the passage of vehicles over them and to resume service on Sixth Ave. as far as Glasgow Street; it being understood that should the removal of the track be authorized at a subsequent d~t~, the Company will pave the portions of the street now occupied by its tracks and two fleet on each side there'cf or in case the track is retained, the space between rails mndt~o fleet on each side thereof will be promptly paved as soon as decision is made as to the r~tention of the track. The recommendation of the City Manager was adopted. llth. Forwarded the following opinion of the City Attorney relative to the election of Polic~ Justice and legality of Civil Court, stating that he (the City Manager) concurred in said opinion: "Jan. 24, 1921. "General J. P. Jervey, City Attorney, Portsmouth, Va. "Dea~ Sir~- Relative to election "As requested by you, ~ have made ferring with Judge Bain who has also at the following conclusions: of Police Justice and legality of Civil Court- a thorough investigation cf~ this mat~er, and, after con- considered the question from every angle, I have arrived "l. That the City Council has no right to el~ct a Police Justice at ~his time~ Judge of the Court of Hustings should, however, appoint such an official. That the "Section 309~ of the Code of l~19 provides that in January, 1920, and every four years thereafter, there shall be elected by the City Council a Police Justice for each City of more than 45,000 inhabitants, and that his term of office shall be for four years, beginning on the first d~y of February following his election. Of course no election could be held in Ports- mouth in Janus~ry, 1920, as the City then had less than ~5,'O00 inhabitants according to the last United States census~ A few months later, however, the census was completed, and it show- ed that Portsmouth was in the 50,000 class. Tmmediately upon this finding, the oflfice of Po- lice Justice was automatical~ly created, and there existed a vacancy in said oflfice. This va- cancy could not then be filled as there would, in such case, have been no tribunal for the trial'of civil ca~es,~the new Civil Court not assuming jurisdiction until March let, 1921. So Justice Thomas was allowed to complete his term as Civil and Police Justice. This term expired on December 31st, 1920, and with it expired the legal existence cfi the Civil ~nd Police Court. We had on that date more than ~5,OO0 i~habitants, and the State law provides that in such case there can be no Civil and Police Court, ~ut t'hat the two must be separate. The State law also repeals all charter prov~isions iz~ conflict therewith, so there could be no Civil and Police Court under the City Charter. It legally ceased ~o exist on December 31, 1~20, and since that · time Justice Thom~s has be~n nold~ng office as a de facto Judge, with color cfi title only. The law provides, how~W~r, that the acts of such a de facto official a~e valid. "Now, with the existence of the Civil Court on M~rch let, s~ud with ~legal right to con- tinue the Civil and Police ~Ccurt, it is the duty of the City to fill the Vacancy now existing in the office of Police Justice. As stated above, this oflfice automatically came into exis- tence with the new census, and has been vacant since that time. Its term is flixed by law, and expires on February let, 192~. So we are not to create a new court at this time, nor are we to elect a Justic~ to begin a term of office as of this date. We are simply to select a Jus- tice to flill out the unexpired term as provided by law. "The only remaining question is, by whom shall this official be elected or appointed? The law provides that the City Council shall in the first instance elect the Police Justice- shall elect in January, 1920, and every four years thereafter. But the Council could not, and dj& not, elect in January, 1920. And now, before this first term of four years has'expired, the oflflce has come into existence. The Stats law on this question unfortunately makes no provi- sion for such a ease. It does not give the Council the right to fill a vacancy or an unexpired term, nor does the City char~er give it such a right. The only solution is to be found in sec- tion 136 of the Code cfi 1919 which provides, that in case of su~ch a vacancy, where no other provision is made, it shall be ~i~led by the Corporation or ~stings Court. Therefore my con- clusion thmt the Police Justice of the City cfi Portsmouth must be appointed by. the Judge of t~e Court of Hustings, to flill out,the unexpired 'term ending February let, 192~. "2~ The quSstiou as to the legality of the election of Justice Thomas as Civil Justice is ~ somewhat doubtful one, but is of little importance. The Civil, li~e the Police Court, wms