134 Va. 124 | Va. | 1922
delivered the opinion of the court.
The appellants filed their bill in equity against the appellee for the purpose of annulling the franchise granted the Victoria Ice, Light and Power Company to use and occupy the streets of the town for the distribution of electric current, upon the ground that it had been improperly granted and hence was null, void and ineffective. There was a demurrer to this bill, which the trial court sustained.
Among the reasons urged to show the invalidity of the franchise is the fact that it was not adopted by a three-fourths vote of all of the members elected to the council. In support of this contention, Constitution, section 125,
Here the town council consisted of six members at the time the ordinance was adopted. There being one vacancy and one member absent, there was a valid adoption of the ordinance by the other four members of the council who were present and voted therefor.
The ordinance is also attacked as invalid, because no method of determining the valuation of the
Our view as to this objection is that these directions are not of the essence of the franchise. In the language of this court, used in Redd v. Supervisors of Henry County, 31 Gratt. (72 Va.) 695, “Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by a failure to obey which the rights of those interested will not.be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it may still be sufficient, if that which is done accomplishes the substantial purpose of the statute.”
In 2 McQuillin on Municipal Corporations, sec. 607, p. 1335, this doctrine is thus stated: “Departure from the form prescribed for corporate action, as in the passage of an ordinance, will not affect the validity of such action unless the charter or governing law makes such formality vital, as by declaring the action or ordinance void unless the form prescribed be followed.”
This general statement as to the contractual powers of municipalities, from the note to First National Bank v. Emmettsburg, 157 Ia. 555, 138 N. W. 451, L. R. A. 1915A, 991, note, is well supported by the authorities: “While the power of these corporations to contract is generally limited by the imposition upon the exercise thereof of certain mandatory requirements or conditions, the delegation of power to contract is
The reason of this rule equally applies here, for the general power to grant the use of the streets upon such lawful conditions as the municipality may impose clearly exists.
The failure to provide a method of valuation here and to make provision by way of forfeiture are not absolutely essential to the privileges granted. . Code, section 3023, affords adequate remedies for the enforcement of the other provisions of the ordinance while a fair valuation, if necessary, could be otherwise secured. The valuation of the grant at the termination of the franchise would only be necessary if the town should determine to exercise its privilege to buy the property, and unnecessary unless the town did so determine. We conclude, therefore, that this omission in the grant does not invalidate it.
The validity of the ordinance is also challenged because of an inadvertence in the advertisement upon its first publication — that is to say, it omitted the following language: “All bids should be delivered or sent to H. T. Faison, clerk, Victoria, Va., and the said bids will be opened by said council in the office at 8 o’clock p. m., March 2, 1914.” The ordinance was published
Another irregularity relied on is that the grantee was not required to execute a bond in favor of the town, as required by Code, section 3020. That section reads: “* * provided further, however, that the person or corporation to whom any such franchise, right, or privilege, is awarded, whether by competing bids or otherwise, as hereinbefore provided, shall first execute a bond with good and sufficient security, in favor of the city or town, in such sum as said city or town shall determine, conditioned upon the constructing and putting into operation and maintaining the plant or plants provided for in the franchise, right, or privilege granted.” No penalty is provided for the failure of the council to observe this direction. In this case, instead of demanding a bond, the council required a certified check for $100, and this requirement was complied with. This provision must also be construed to be directory, because not of
Our conclusion, therefore, is that none of these irregularities invalidate the franchise, that the constitutional provisions and the statutes which authorize such grants have been substantially complied with, that therefore the company has a valid franchise granted by the town, and that the trial court committed no error in sustaining the demurrer to the bill.
Affirmed.
“ Section 125. Sale of corporate property and granting of franchises by cities and towns. —The rights of no city or town in and to its water front, wharf property, public landings, wharves, docks, streets, avenues, parks, bridges, and other public places, and its gas, water, and electric works shall be sold except by an ordinance or resolution passed by a recorded arffimative vote of three-fourths of all the members elected to the council, or tto each branch thereof where there are two, and undersuch other restrictions as may be imposed by law; and incase of the vetobythemayorofsuoh an ordinance or resolution, it shall require a recorded affirmative vote of three-fourths of all the members elected to the council, or to each branch thereol where there are two, had in the manner heretofore provided for in this article, to pass the same over the veto. No franchise, lease or right of any kind to use any such public property or any other public property or easement of any description, in a manner not permitted to the general public, shall be granted for a longer period than thirty years. Beiore granting any such franchise or privilege for a term of years, except for a trunk railway, the municipality shall first, after due advertisement, receive bids therefor publicly, in such manner as may be provided by law, and shall then act as may be required by law. Such grant, and any contract in pursuance thereof, may provide that upon the termination of the grant the plant as well as the property, if any, of the grantee in the streets, avenues, and other public places shall thereupon, without compensation to the grantee, or upon the payment of a fair valuation therefor, be and become the property of the said city or town; but the grantee shall be entitled to no payment by reason of the value of the franchise; and any such plant or property acquired by a city or town may be sold or leased, or if authorized by law, maintained, controlled and operated, by such city or town. Every such grant shall specify the mode of determining any valuation therein provided for^ and shall make adequate provision by way of forfeiture of the grant or otherwise, to secure efficiency of public service at reasonable rates, and the maintenance of the property in good order throughout the term of the grant. Nothing herein contained shall be construed as preventing the General Assembly from prescribing additional restrictions on the powers of cities and towns in granting franchises or in selling or leasing any of their property, or as repealing any additional restriction now required in relation thereto in any existing municipal charter.”