11-05-1951 Regular Meeting47
The regular meeting of the Mayor and Council was held at the City
Hall, November 5, 19510 7:30 P. M. Mayor J. M. Gibson, presiding,
with the following Councilmen present: H. L. McEntyre, Stanley
McCalla, C. W. Jones and John Collier. City,Engineer, M. J. Hensley
and City Attorney, Harold Willingham present.
Minutes of previous meeting read. Motion by Councilman Collier,
seconded by Councilman McEntyre to approve the minutes as read. Voted
unanimous.
Minutes of special meeting October 15, 1951 read. Motion by Council-
man McEntyre seconded by Councilman McCalla to approve minutes of
special meeting as read. Voted unanimous.
Motion by H. L. McEntyre seconded by Stanley McCalla to purchase
J. B. Stamper property, ajoining city property on W. Spring Street,
at a price of $1500.00. Voted unanimous.
Election report read declaring,Glenn R. Yarbrough, Jr., Charles Mayes
Hamby and Harry Mitchell, Jr. the three newly elected Councilmen to
take office January 1952. Motion by John Collier seconded by H. L.
McEntyre to accept report of Election Managers. Voted unanimous.
Mr. John Tatum came before the Council in regards to a paving assess-
ment notice he had received. City Engineer, M. J. Hensley asked by
Mayor to check into this matter.
Pursuant to advertising as required by the Charter a public hearing
was held on the ordinance to pave Smith Street introduced by Council-
man John Collier and seconded by Councilman Stanley McCalla at the
October 1, 1951 meeting of the Mayor and Council. After public hear-
ing, motion was -made by Councilman John Collier and seconded by Stanley
l- McCalla that the ordinance for the paving of Smith Street be passed as
introduced. Motion unanimously carried and such ordinance was adopted.
Ruling given by City Attorney regarding Mayor's salary read by City
Attorney Harold Willingham. Ruling to be spread on minutes and made
a part thereof, by motion of Councilman John Collier seconded by John
Collier. Voted unanimous.
Upon motion of Councilman John Collier seconded by Councilman H. L.
McEntyre, the following ordinance was adopted:
Whereas it has been determined by the Mayor and Council of the City of
Smyrna, that because of the growth and expansion of the City that the
full time services of the Mayor are required to properly preform the
duties of his office as Mayor of the City of Smyrna and that it is there-
fore necessary to compensate the Mayor for his full time services pre-
viously rendered and to be rendered.
Now therefore be it ordained by the Council of the City of Smyrna and
it is hereby ordained as follows: that for the reasons of orestated
it is deemed necessary that the Mayor render unto the City full time
services in the performahc® as his duties as Mayor.ofThAt`the Mayor -el-,#
be compensated the sum of $500.00-for full time services rendered
unto the City from Octoberl, 1951 to November 5,
That from November 5, 1951 up to and through December 31, 1951 that
the Mayor be compensated for full time services to be rendered by him
during such period at the rate of $115.00 per week.
That the compensation therein provided shall be paid from the General
Funds of the City.
,The ordinance adopted by this Council on the 1st day of October 1951,
pertaining to employing the Mayor as Supt. of Construction and fixing
his compensation therefor be and the same hereby is repealed in its
entirety.
Voting for Councilmen John Collier, H. L. McEntyre, and Stanley,McCalla,
t Voting against, C. W. Jones. Ordinance adopted.
Motion by Councilman Stanley McCalla seconded by Councilman John
Collier to give sewerage to eleven (11) houses facing Concord Road
with the stipulation that the eleven (11) lots be declared in the
City limits by Bennett'Realty Company. Voted unanimous.
Motion-by"Councilman John Collier seconded by Councilman Stanley
McCalla to place order with Rensselaer Valve Company for seven (7)
fire hydrants and an order of parts. Voted unanimous.
Bills read by Mayor. Motion by Councilman H. L. McEntyre seconded
by Councilman Stanley McCalla to pay current bills. Voted unanimous.
Motion by Councilman H. L. McEntyre seconded by Councilman Stanley
McCalla to extend 4`GUI 2" water line for seven houses, Lee Street
Extension known as Cadle'Sub-Div. Voted unanimous.
Mr. Gibson stated that he could get 14000, of 2" mechanical joint
cast iron pipe 'at .53¢ per foot.
Mr. Pritchet came before council with a proposed project of 30 acres
North of Spring Street just outside City limits, if water lines would
be available.
Mr'. Crowe ask the council to furnish water meter to serve sevekal
houses he plans to build.,
Motion by Councilman H. L. McEntyre seconded by Councilman Stanley
McCalla to table,all request for water lines until the next meeting.
Voted unanimous.
Wylie Durham came before the Council regarding city limits line which
affects the property of his mother Mrs. C. T. Durham. City Engineer
ask to check into this matter and report to Council.
Meeting adjourned.
Clerk
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WILLINGHAM. CHENEY. HICKS & EDWARDS
ATTORNEYS -AT -LAW
MANNING BUILDING TELEPHONE 726
MARIETTA. GEORGIA
AROLD S. WILLINGHAM October 18, 1951
JOHN P. CHENEY
CLAUD M. HICKS
SCOTT EDWARDS, JR.
r
Mayor and Council
City of Smyrna
City Hall
Smyrna, Georgia
Gentlemen;
At the last regular meeting of the Mayor and Council of the
City of Smyrna, I was instructed by you to render unto you an official
written opinion with reference to the authority of the Council to fix
the compensation of the Mayor for his services performed to the city in
his capacity as Mayor or otherwise.
We here in the office have made a painstaking and thorough
examination into the legal principles involved -in the question presented
to us for determination. In the course of such examination we have
carefuxly reviewed the Charter of the City of Smyrna, all general statutes
of the State of Georgia pertaining to the subject matter involved, all
court decisions of the appellate courts of this State touching on the
matter, and also pertinent sections of recognized textbooks in the field
of the law of municipal corporations.
In other words, we feel that we have, in preparing ourselves to
answer the question presented, done as thorough a legal research job as
possible. In fact, we are well prepared to write an exhaustive brief on
the subject. Accordingly, we could write the within capinion in the form
of a brief and set forth therein in detail citations of the statutes and
authorities in support of the conclusions reached, together with our
reasoning in arriving at such conclusions in the light of such statutes
and authorities.
However, it is not believed that you are interested in receiving
such an exhaustive opinion, but rather would prefer to have our conclusions
?� succinctly set forth in plain dish. We shall therefore proceed to do so.
The Charter of the City of Sgrrna sets forth in general terms the
duties of the Mayor of the City. It provides that the Mayor shall be the
City's chief executive officer and that in such capacity he shall see that
all laws, ordinances, rules and regulations of said city are faithfully
< executed. He is further given the responsibility to see that all officers
and employees of said City faithfully discharge their respective duties.
Mayor and Council, City of Smyrna Page 2 10-18-51
It is further his duty to preside at all meetings of the City Council and
he has authority to convene the City Council into special or extra sessions
when he deems same necessary. Specifically, and in addition to the above
specially enumerated duties, he is given the responsibility of general
supervision over all the affairs of the City.
Even though the duties of the Mayor are rather clearly and suc-
cinctly set forth as above outlined, there is no provision -in any section
of the Charter pertaining to his compensation for rendering these services
that he is required by law to render. That is, the Charter provides no
compensation whatsoever unto the Mayor, nor does it set forth any manner
or method as to how such compensation shall be provided or paid.
We are of the opinion from our legal investigation made as
aforesaid that the Mayor is not a Member of the City Council. He is the
Chief Executive Officer of the City and as such is not a Member of its
legislative body, which legislative body is of course the Council. As
such Chief Executive Officer he is given the right and duty under the
Charter to preside over all the meetings of the Council and is also given
a veto power over any resolution or ordinance adopted by the Council, such
veto power to be exercised in the manner in detail set forth in the Charter.
For the above reasons, that is since the Charter of the City of
Smyrna provides no compensation for its Mayor and makes no provision what-
soever for same and since the Mayor is not a Member of the legislative
body of the City, it is our opinion that the City Council, the legislative
body of the City, has authority to fix the compensation of the Mayor.
Such compensation should be reasonable and commensurate with services ren-
dered. The aforesaid stated are believed to be the only restrictions in
fixing and providing the compensation of the Mayor for performing his
duties as Mayor.
Accordingly, it is our opinion that if it is necessary for the
Mayor to render full time services in performance of his duties as Mayor,
then in such event the Council would be authorized to compensate him
reasonably for such full time services. If it be necessary for the Mayor
to render only part-time service to the City in the performance of his
duties, then in such event, it would be,proper for the Council to compen-
sate.him reasonably for such part-time services. It is believed that it
is properly the duty of the Council to determine whether the duties of
the Mayor require his full time services or his part-time services, and in
the latter event the extent of same.
Having resolved the above as aforesaid, we next turn to a con-
sideration of the question as to whether or not the Mayor can, in addition
Z,Qayor and Council, City of Smyrna Page 3 10-18-51
to his office as Mayor, hold another office or job in the government of
the City either as an officer or an employee thereof. Neither the Charter
of the City nor the laws of this State are clear on the subject. Clearly,
if the Charter of a City authorizes the Mayor to hold another job or office
of the City, he can do so. Clearly, on the other hand, if the Charter of
a city forbids the holding of any other job or office of such city by its
Mayor, then he of course can not legally do so.
Sectionl8 of the Charter of the City of Smyrna provides in part
in referring to the election of officials by the Council of the City, as
follows:
"In their discretion they may appoint the seme person to
perform the duties of more than one office or more than
one person to perform the duties of the same office, and
all such officers shall be elected at the first regular
meeting held at or after the election and qualification
of said mayor and councilmen, or as soon thereafter as
practicable."
While the above is clear enough when taken from its context in Section 18,
it is not at all clear whether such sentence in connection with its context
in Section 18 refers to all officers and employees of the City or only to
the clerk and marshall thereof.
There is no prohibition in the Charter of the City of Smyrna what-
soever against,the Mayor's holding another job or another office of the
City. Further, there is -no general statute of this State that prohibits the
mayor of any city in this State from holding another office or 'job in the
government of a city of which he is mayor.
Under the.above•circumstances, the only possible prohibition
against a mayor's holding two jobs in the city government of a city of this
State rests on the public policy of this state as determined by the courts
of this State in the absence of particular legislative expression on the
subject in each instance presented.
For the reasons above set forth, it is our opinion that it would
be more legally proper to compensate the Mayor reasonably for full time
services if same were necessary in the performance of his duties as Mayor
of the City, than to compensate him for such full time services through the
medium of two separate and distinct jobs or offices. If it is decided by
Council that the full time services of the Mayor are necessary in the per-
formance of his duties as Mayor, then in such event, it is our opinion that
such full time salary as is authorized by the Council could be charged pro-
rata against the various departments or funds of the City in proportion to
the services rendered unto each.
Mayor and Council, City of Smyrna Page 4 10-18-51
If any further elaboration on the within opinion is desired,
including citation of statutes and authorities, kindly advise and we shall
endeavor to furnish same as expeditiously as possible.
HSW:tdm
3�,
Yours very truly,
HARQLD S. WILLINGHAM
Attorney for City of Smyrna
E. E. SENNETT RUFUS PRITCHETT R. B. BENNETT
PRESIDENT SECRETARY VICE-PRESIDENT
BENNETT REALTY CORPORATION
501 PETERS BUILDING
ATLANTA 3, GEORGIA
November 6, 1951
Honorable Mayor and Council
City of Smyrna,
Smyrna, Georgia
Gentlemen:
It is requested that you immediately incorporate within
the City of Smyrna eleven (11) lots located on the South side
of Concord Road between Hollis Street and the Brown Property.
.In return for which we will purchase water meters, pay
$100.00 for each sewer tap and otherwise conform to the building
requirements as set up by the City of Smyrna.
Thanking you for your co-operation in this matter. We
remain,
Yours very truly,
BE' LTY7ORPORAT I N
R. Be Bennett, Vice Presi ent