Loading...
11-03-1952 Regular MeetingThe regular meeting of the Mayor and Council was held at the City Hall November 3, 1952, 7:45 p.m. Mayor J. M. Gibson, presiding with the following Councilmen present; Glenn Yarbrough, Harry Mitchell, C. M. Hamby, C. C. Terrell and Eugene Rice: Minutes of previous regular meeting read. -Motion by C. M. Hamby seconded by C. C. Terrell to approve minutes as read. Votedrau;4-y nanimous. Minutes of special meeting read. Motion by Glenn Yarbrough seconded by Eugene Rice tp approve minutes as read. Voted u- nanimous. Regarding the property of Roy Howard on Bank St.,.it was reported that the county had furnished pipe and the city ask to furnish the labor for installing the pipe for the correction which had been previously discussed by the Council. Raymond Reed and Be F. Reed, Jr., appeared before the Council in protest to a pending ordinance to be passed upon relative to charge where multiple families use from. one water meter. F. Upon motion by Eugene Rice seconded by C. C. Terrell the following ordinance was unanimously adopted. Ordinance attached to these minutes and made a part thereof: Motion by Glenn Yarbrough to bill apartments of Southern'Manor on basis of $2.00 min. per unit until serviced by sewerage; at such time to divert to $3.00 min per unit. There being no second, motion lost. Motion by C. M. Hamby seconded by Glenn Yarbrough, that units of Southern Manor not on regular sewer line to be billed $2.00 min. Voted unanimous. City Attorney Harold Willingham presented each Councilman copy of ruling regarding Mayors action with the H. W. Richards Company of Carrolton and read to the Council the ruling. Ruling attached to these minutes and made a part thereof. Motion by C. M. Hamby seconded by Eugene Rice to accept ruling of City Attorney. Voted unanimous. Mr. Appleby, Fairbanks, Morse Company quoted price of sewerage pump $699.70 pump delivered, additional 3 phase,motor $196.30..4" pump, capacity 200 gal per min. Check valve to be purchased else- where. Motion by Eugene Rice seconded by C. C. Terrell authorizing Councilman Yarbrough to purchase pump. Voted unanimous. Motion by Councilman Hamby that Fennett Realty Co., be contacted, explaining position of the City'and ask that they give financial help. Seconded by Harry Mitchell. Voted unanimous. Attorney Harold Willingham gave report on Federal Grant application stating for the present the application had been tabled. Mayor Gibson suggest that the Mayor and Council make an appointment with Congressman Lanham in regard to getting some action on the ap- plication. Motion by Eugene Rice seconded by C. C. Terrell to ac- cept resignation of Mrs. Louise Logan. Voted unanimous. Motion by Eugene Rice seconded by Harry Mitchell to pay bills upon approval of the finance committee. Voted unanimous. Report of election managers read and attached to these minutes and made a part thereof. Motion by Eugene Rice seconded by �'. C. Terrell to accept report. Voted unanimous. Council ask that a letter of appreciation be written to the election managers for the efficent way the election was conducted. 104 Motion by Eugene Rice seconded by C. C. Terrell to adjourn meeting. M Meeting adjourned. Clerk BSON.. MAYOR GLE YARBROUG C. M. HAMB 0-0-,4,Z -4 C,� TERRE TCHF. L EUGENE RICE Wll"NGHAM. CHENEY. HICKS & EDWARDS ATTORNEYS -AT -LAIN MANNING BUILDING TELEPHONE 8-1594 HAROLD S. WILLINGHAM MARIETTA, GEORGIA JOHN P. CHENEY CLAUD M. HICKS November 3, 1952 SCOTT`EDWARDS. JR. Honorable Mayor and Council City of Smyrna Smyrna, Georgia Gentlemen: At your last meeting held on Thursday evening, October 23rd, you instructed me, as your City Attorney, to render a written opinion to you on the following two questions: (1) Did the Mayor exceed his authority in selling, or otherwise disposing of, certain cast iron pipe to the H. W. Richards Lumber Company of Carrollton, Georgia, and in purchasing with City funds for the Bennett Realty Company certain gas pipe and selling same to such concern at cost? (2) In the event that the Mayor did exceed his authority in such transactions, did he violate any State statutes in so doing, and I assume in the second question that the Council had in mind, criminal statutes? The municipal government of the City of Smyrna is by Section 2 of the Charter of said City, as amended, vested in a mayor and five councilmen as follows: ". the municipal government of the City of Smyrna, in said County of Cobb and State of Georgia, shall be vested in a mayor and five councilmen, who are hereby constituted a body corporate as the 11&yor and Council of the City of Smyrna,' . . .11 The City of Smyrna acting by and through its Mayor and Council is by the same Section above referred to, that is Section 2, 1t. . . authorized and empowered by law to purchase, hold, rent, lease, acquire, receive by gift or donation or otherwise, and to sell, exchange, enjoy, possess and retain, temporarily or per— petually,, -for any period of time, any property, real or personal, any estate, lands or tenements and hereditaments of any kind whatsoever, either within or without the corporate limits of said City of Smyrna, for corporate purposes*" Honorable Mayor and Council Page 2 11-3-52 In light of the above, the Mayor and Council in exercising its power granted in its Charter to purchase, acquire, sell and exchange property, it is necessary that the City act through its Mayor and Council, its governing authority as above set forth. Accordingly, neither the Mayor nor: any Councilman, nor any other City official or employee can either purchase or sell City property without sanction of the governing body which is as stated the Mayor and Council. If the Mayor, any member of Council or any other City official or employee purchases or sells City property without sanction of the Mayor and Council, such purchase or sale constitutes an ultra vires or an unauthorized act on the part of such person. Further and obviously, if the Mayor and Council acting as a body, or individually, uses City funds and City credit for the benefit of a private individual or concern in transactions un- related to the business of the City, such acts would also be ultra vires and unauthorized. However, after a careful review of the statutes of our.State, it is my considered opinion and judgment that such an ultra vires or unauthorized act as that described above in purchasing or selling City property does not violate any criminal statutes because there are none covering same, and therefore does not constitute a crime. To charge a person with a crime, other than the violation of a municipal ordinance, such person must have violated some general criminal statute of our State. There are none on such subject. In fact, in the Chapter of our Code, Title 69, which deals with municipal corporations, there are only three statutes dealing with and defining crimes. These are embodied in Code Sections 69-9901, 69-9902, and 69-9903 which read as follows; t!69-9901. 11,1unicipal elections, illegally voting at. - Any person who shall vote illegally at any municipal election shall be pun- ished as for a misdemeanor." 1169-9902. City employee presiding as manager of election guilty of misdemeanor. - It shall be unlawful for any employee or official of any town or city to preside as manager of any election for mayor and alderman of the town or city of which he is an employee or official. Any person violating this section shall be guilty of a misdemeanor.". "69-9903. Violations of Chapter 69-81 regulating zoning and planning in municipalities* - In case any building or str.-.tune is erected, constructed, reconstructed, alterhd or repaired, converted.or main- tained, or any structure or land is used in violation of Chapter 69-8, or of any regulations duly made under the authority conferred hereby, or in the event of the violation by any person or persons Honorable Mayor and Council Page 3 11-3-52 of any of the provisions of said Chapter, such violation in respect shall be held to be a misdemeanor under the laws of the State, and the offender upon conviction shall be punished as for a misdemeanor and any court of the county in which such minicipality lies -having jurisdiction of misdemeanor cases shall have jurisdiction to try such offenders and upon conviction to so punish them; and each day that any structure or land is used in violation of said Chapter shall constitute a separate offense." Obviously, the subject matters of the above Code Sections are foreign to the inquiry here made and accordingly have no bearing on same. Now, after the above conclusions, I am certain that the question has come to your mind as to what recourse the City has to protect itself from ultra vires or unauthorized acts, that do not in and of themselves constitute a crime under our statutes. The only remedies that the City has are civil remedies. These would be voidance of any such ultra vices or unauthorized contracts, suit for damages to reimburse the City for any damages suffered by reason of same, injunction to restrain or enjoin any of such acts in process or contem- plated in the future, etc. Obviously, to protect the general public in such matters the Legislature has enacted Code Section 69-208, which reads as follows: 1169-208. Personal liability of officer. - Elembers of the council and other officers of a municipal corporation shall be personally liable to one who sustains special damages as the result of any official act of such officers, if done oppressively, maliciously, corruptly, or without authority of law.11 As an additional possible remedy, I think it would be permissible and legal for the Mayor and Council of the City of Smyrna to adopt an ordinance or ordinances regulating subject matters. In such instance any one violating such ordinance or ordinances could be punished in a defined manner to the extent of the City's Charter power to punish for violations of its ordinances. In connection with this inquiry, Councilman Hamby has cited to me for attention and consideration Code Section 26-2801 and the Supreme Court decision in the case of Miller et al. v. City of Cornelia et al., 188 Ga. 674. Code Section 26-2801 provides as follows: f126-2801. Public officers, agents, etc. - Any officer,_servant, or other person employed in any public department, station, or office of government of this State or any county, town, or city thereof, who shall embezzle, steal, secrete, or fraudulently take and carry away any money, paper, book, or other property or Honorable mayor and Council Page 4 11-3-52 effects, shall be punished by imprisonment and labor in the peni— tentiary for not less than two years nor more than seven years." The above is the Code Section defining the crime of embezzlement and fixing the punishment thereof. The leading case that has been decided in Georgia construing such Code Section is that of Robinson v. The State, 109 Ga. 564 where, beginning at Page 567, the Supreme Court succinctly sums up the things that must be proven to authorize a conviction under such Section as follows: «Under our statute, we think three things must be shown to authorize a conviction: first, that the accused is a public officer or occupies a fiduciary relation; second, that the money or property which he is charged with appropriating to his own use came into his possession by virtue of his office or employment; third, that he embezzled or fraudulently converted it to his own use." ' Since the property and money in question have not been fraudulently con— verted to the personal use of -the officer here in question, such Code Section has no application to the facts of the within cause. It is my understanding that the City of Smyrna has received payment in full for the pipe sold to the Bennett Realty Company and that when the H. W. Richards Lumber Company pays for the pipe acquired by it that such funds will be paid into the City. I have carefully reviewed the above cited case of 14iller et al v. City of Cornelia, et al., supra. Such case is authority for the proposition that unauthorized or ultra vires acts of city officials can be -enjoined by a court of equity. This remedy of injunction was one of the civil remedies that I set forth above as being available when facts and circumstances justify the use of same. 'While not embodied in the official motion of Countil requesting the within opinion, I understand from newspaper articles regarding this subject that some question has arisen as to the violation of the sales tax laws of our State. I have previously ruled that the sale by the City of pipe to a private individual or company is subject to the Georgia Sales and Use Tax of 3%. It is my understanding that the sales tax has been collected and remitted to the State on the Bennett Realty Company transaction. Of course the sales tax should be collected on the bill submitted to the H. W. Richards Lumber Company when same is paid. The Georgia Sales Tax law does not re— quire the collection of sales tax on a sale until the purchase price is actually paid. It is my knowledge that several members of Council have discussed this matter with my fellow —member of the Bar here in Marietta, Honorable Ben a Honorable Mayor and Council Page 5 11-3-52 Smith. Knowing this, I have discussed the legal conclusions herein reached in detail with him and he is in thorough accord with same. In closing, I want to make it clear that I have confined this investigation to the strictly legal aspects of the matter. As your City Attorney engaged on a professional basis it is not within my province to sit in judgment upon any city official. The courts are duly constituted for such purpose. Therefore, I express no opinion as to the guilt or innocence of any one involved or concerned. HSW:Mc Respectfully submitted, HAROLD S. WILLINGTW Attorney for the City of Smyrna r r I ORDINANCE ESTABLISHING MINIMUM MONTHLY VIATER RATES .� ON ?MTERS FURNISHING MORE. THAN ONE FAMIL N MULTI— ti PIE HOUSING DEVELOPMENTS AND APARTMENTS; ESTABLISH— ING MINIYUM MONTHLY SERVICE CHARGE WHEN WATER METER CONNECTED BUT WATER NOT TURNED ON; AND ESTABLISHING SERVICE CHARGE FOR TURNING WATER ON AFTER SAME HAS BEEN CUT OFF. i WHEREAS, it has come to the attention of the ?.rW or and Council that a number of water meters installed in the City are serving more than one family and that only one minimum charge is being presently assessed against such meters; and WHEREAS, it is the consensus of Mayor and Council that each family dwelling unit served by water in the City -should pay a minimum monthly water bill; and WHEREAS, it has come to the attention of Mayor and .'Council.that there are a number of water meters installed in the City on 'which water , 1 service is not connected and that no charge is being assessed or collected i by reason of same; and WHEREAS, it is the consensus of Mayor and Council that in all instances where water meters are connected and no water service furnished that a minimum monthly service charge of $1.50 should be assessed and collected; and WHEREAS, the City has been charging a service charge of $1.00 for 'turning water on when it has previously been disconnected, but that there appears to be no ordinance on the books authorizing such service charge, NOW, THEREFORE, be it.ordained by the Mayor and Council of the City of Smyrna and it is hereby ordained by the authority of same as follows: (1) That there is hereby assessed, fixed, and levied against each family dwelling unit in the City of Smyrna furnished by water a minimum monthly water bill; that is, in the case of apartment'houses or multiple housing developments, garage apartments, etc.,.if more than one family and dwelling unit is served off one meter, then in such event the minimum charge on such meter will be the minimum amount that would otherwise be assessed against such meter if it were serving only one family or one dwelling unit times the number of families and dwelling units actually furnished by such meter, (2) That in all cases where water meters are connected and the water is turned off, there is hereby fixed, assessed, and levied a monthly minimum service charge of $1.50. (3) That in all cases where water is turned off there is hereby fixed, levied, and assessed a service charge of $1.00 for cutting the water back on. (4) That no person shall either cut water on or off, but shall notify the City of his or her desire concerning same in which event cognizant agents and employees of the City shall perform the desired service. (5) That after water is cut off for non—payment of bill or by request or otherwise, before same will be cut back on it shall be necessary for the owner or occupant to pay the above service charge provided in', Paragraph (3) together with all other service charges and fees due on such meter up to the time resumption of service is desired. (6) That any person or firm who shall violate any provisionof the within ordinance upon conviction thereof for each such offense shall be fined not less than $25.00 nor more than ;100.00. (7) That all previous ordinances or any part of same in conflict herewith be and the same are hereby, repealed to the extent of any such conflict. (8) That the provisions of the within ordinance shall become effective November 1, 1952 and shall thereafter remain in full force and effect until subsequent action by the Mayor and Council altering, amending, or repealing same. E I! M — 2 "