The Clinton chronicle. (Clinton, S.C.) 1901-current, January 22, 1925, Image 9
THURSDAY, JANUARY. 22, IMS
(AdTertlMncnt)
Minutes of Call Meeting of
Council January 14, 1925,
Containing Mayor’s Ruling
Council was called to order by the
Mayor and led in prayer. Present: Mr.
C. C. Bailey, Mr. L. R. Stone, Mr. T. J.
Blalock.
The meeting was called by the Mayor
by announcement in Council, towards the
close of the meeting of January 12th, at
which meeting Council had passed Cer
tain resolutions and amendments to an
Ordinance passed Janury 5th, which Or
dinance was entitled: “An Ordinance
to prescribe rules and regulations for a
meeting of the Council of the Town of
Clinton; to prescribe rules and regula
tions for quorum; to prescribe the powers
and duties of the Mayor and members of
Council; to prescribe the manner of pur
chasing supplies and payment for the
same for tne Town of Clinton; t<k pre
scribe rules and regulations for the em
ployment of policemen and other town
employes; and to prescribe the manner
of paying salaries, wages and other ex
penditures of said town,” which Ordi
nance was amended Janury 12th in oec-
•tions 2 and 3. At the meeting of Janu
ary 12th a call was issued for a meeting
of the Council to occur each morning of
the whek, except Sundays and holidays,
at 9 o’clock in the Mayor’s office, for the
lurpose of discharging the duties which
leretofpr* haw? been discharged by the
Mayor, out which under these restrictive
acts of Council would have to devolve
upon the Council assembled. Addition
ally 'the meeting was called bv special
letter mailed to each member of Council,
and a copy of that letter was presented
to all members of Council except ,one,
who could not be found, through the
Chief of Police.
The Mayor, in calling the regular
morning meeting of the Town Council of
the Town of Clinton, declared that in his
opinion the Ordinance above referred to,
with its amendments and restrictive res
olution following, was illegal, and that
TH8 CUNTON CHRONICLE.
bfCoundl
PAGE NIKE
“whenever
(Not Yet Approved)
and together with a resolution of Coun
cil passed at the same meeting, entitled,
‘Resolution of the Town Council of the
Town of Clinton, 8. O.,’ and pladna
various restrictions upon salaries and
pay rolls, this said Ordinance, amend
ments thereto and resolutions of Council
I declare In my opinion to be illegal, and
I therefore declare them null and void
and decline to put them“nto effect
“The grounds on which I have reached
this conclusion are: First, the Town of
Clinton is a corporation existing by the
authority of a charter issued by the
State of South Carolina, which charter
was issued by J. T. Gantt, Secretaryof
State, 24th day of March, A. D., 1^06,
and in the one hundredth and thirtieth
ear of the independence of the United
Itatee of America, in which charter* the
following authority is given: ‘Now
therefore I, J. T. Gantt, Secretary of
State, by virtue of the authority in roe
vested by said Article 2, Chapter 49,
Code of 1902, and amendments thereto,
do hereby certify that the Town of Clin
ton is duly incorporated with the privi
leges, powers and immunities, and sub
ject to the limitations prescribed in said
code for towns and cities of more than
1,000 and less than 5,000 inhabitants.’
This charter'refers to South Carolina
fode for towns and" cities of more than
1,000 and less than 5,000 inhabitant*,,
which' .code together with the charter,
represents the constitution of the Town
of Clinton, beyond thei limitations of
which the corporation has no authority
may call ameedi
In this iroundsri* paragraph it i* Attempt
ed to substitute the judgment of two
aldermen for the judgment of the Mayor
as to the necessity of a meeting of Coun
cil, and while the above quoted paragraph
from the code provides Gut “toe Mayor
shall have .authority to summon the al
dermen” tab amended section of the town
Ordinance provides, “that the Mayor or
Mayor pro tern, in the event, of the in
ability of the Mayor txratt
a special meeting of Co
“shall”, indicates a
meat under which
fuse to net. Yet
i mandate, a r
the Mayfc cam
in the Code it
shall call
1” which
a require-
cannot re-
is not
made mandatory upon the Mayor to call
a meeting of Council, though in common
necessity it is necessary on occasion to
call a meeting, bnt the decision as to
that necessity rests upon the judgment
of the Mayor in the expression “in his
judgment,” and he ia not by the code
ordered to call a meeting by the judgment
of anyone else, nor at any time other
than when he may regard it as necessary
so to do. The code doss not say, “The
Mayor shall call a meeting of Council,”
but on the contrary says, “The Mayor
shall have authority to summon the al
dermen.” ’ It is therefore, in my opinion,
under the code, left to the Mayor to call
special meetings of Council which in his
judgment he may deem necessary, and
the'-assertion of any right on the part of
one, two or more aldermen to overthrow
the Mayor’s authority as thus accorded
him by the law of the State of South
Carolina is an encroachment upon his
legal official right, and this provision ia
made for very good reasons, which are
illustrated ip the events leading up to,
of said M
to legislate or to act in any respect.”
The 1922 Civil code of South Carolina,
Section 4542, paragraph 5, reads as fol
lows : “Council Meetings.—The Mayor
shall have authority to summon the al
dermen to meet in Council for the trans
action of bSsiness pertaining to the cor
poration whenever in hia judgment it
may be necessary.” This section,'in my
■in -r 1
mutually current for light power and
cooking purposes and water to the citi
zens ns individuals.
Section 5 of said Ordinance prohibits
tbe Mayor or any other authority of the
town, except by approval of Council in
Council assembled, from employing in
behalf of the town’s interest any em
ployee at n salary or wages exceeding
$25.00 per month. It must be readily
apparent that when the market value of
competent day labor ranges from $2.00
to $2.25 per day for common labor as at
S resent, it is not practicable for the town
y Ordinance to regulate the price of
labor, nor would it be in public intereet,
nor in justice to tbe citiseus of tbe town,
nor in harmony with national and State
law protecting labor for any Ordinance
to be pat into execution in the Town of
Clinton by the Town Council to restrict
the wages of tbe people to not exceeding
$25.00 per month, of' to enforce service
at a wage not exceeding $25.00 per
month, and since this cannot be done and
is not even attempted in this Ordinance,
it must be apparent as a commoiuense
principle that the town would be without
common labor, and therefore could not
maintain its streets, nor sewer system,
nor water system, nor operate its water
and light plant, nor attend to any of the
ordinary work requiring labor without
calling Council in session to approve each
employment of labor, and since labor is
constantly changing this would mean n
constant session of Council, meeting at
and resulting in the passage
inf
dinance and amendments
restrictive resolutions.
thereto
Gr
and
he had not signed the Ordinance, nor at-. opinion, gives exclusively to the Mayor
tached the seal of the town, and there-1 of the Town of Clinton the authority to
foro had not put it into effect because J summon aldermen to meet in Council for
he regarded it as contrary to the law of i the transaction of business pertaimug to
the State of South Carolina governing [ the corporation. It given him authority
coruoratious. towns and cities of less! to set the time of meeting as indicated
than° 5,000 population, which Jaw in ef-jby the word “whenever”. The calling of
feet is the Constitution of thk Town of j the meeting is to be done solely when in.
Clinton, and restricts the scipe of all
action by the corporation. '
The Mayor also declared that in his
opinion the restrictions contemplated^ in
the law were impracticable, injurious to
public interest and detrimental to the
service of the various departments of the
town government, and that in his opinion
the Town Council could not, in its hm- —. . , . ,
ited normal meetings, attend to all the ; ment for the judgment of the Mayor as
his judgment” it may be necessary, and
not when it may be necessary in the judg
ment of others. The code does not, so
far as it appears to me, convey to any
alderman the right to call a meeting of
of Council, nor does it convey to the
Council as a whole the right to call a
meeting of Council, nor to set the date
of meeting, nor to substitute their judg
That a certain number of- the council-
men or aldermen of the Town of Clinton
assembled without giving notice to the
alderman representing Ward 6, and with
out giving notice to the Maydr, without
whom a Council meeting cannot exist,
unless the Mayor pro tern is present un
der conditions which make the Mayor
unable to act. In this case the aider-
man from Ward 6 is the Mayor pro tern,
and since neither the Mayor nor the
Mayor pro tern were notified of the meet
ing, there was no meeting of Council, but
merely a conference or a caucus of coun-
cilmen, having no legal authority, and
having no existence as a legal entity;
that this conference or caucus of council-
men applied to the City Attorney, in
structing him to draw an Ordinance to
accomplish their purpose. I am advised
by the City Attorney that they did not
ask his advice as to the wisdom of their
purpose, nor did they ask his advise ns
to the legality of the Ordinance when
drawn to meet their requirements. They
only asked him to draw the Ordinance
to carry out their purpose.
least daily, and would probably require
d efficiency that
meet throughout the business
for proper economy an
Council meet througho
hours of the day, and on some occasions
require that Council meet at any time
of the day or night to meet emergencies.
I therefore rule that this section is in
consistent with public good, injurious to
the public interest, destructive of the or-
or 15 items of business of more or less
pressing necessity were neglected to the
injnry of the town’s intertit, and to its
financial loss, but also when immediately
after tbe passage of said Ordinance on
January 5th the Mavor called upon
Council to act upon and decide favorably
or unfavorably upon a contract involving
several thousand dollars of work to be
done Mr. Geo. Odiornc, Contractor,
siid contract including abont fourteen
pages of foolscap matter, the Council
failed to hear the reading of, the contract
which the Mayor urgently pressed upon
their attention and urged that they have
read, and considered and attended to.
When he urged that they attend to their
duties thus assumed under the above Or
dinance they moved to adjourn, thus
leaving the matter unattended to, and
when the Mayor still called them to
do their duty and attend to this function,
which the Mayor otherwise would have
attended to, the contract having already
been approved and recommended by the
City Engineer, a majority of the mem
bers of Council left the Council room
without permission of the Mayor and in
contempt of his authoritv, and without
adjourning in an orderly and formal
manner, constituting a clear case of neg
lect of duty, which would, if this Ordi
nance had been signed by the Mayor,
have been actionable before the Re
corder’s Court, and actionable also in
damage suits against such councilman by
any persons aggrieved or injured by their
heglect of duty. As a majority of Coun
The facts appear to. be as follows:' ganizatmn necessary to the maintenance
daily duties hitherto performed by the
Mayor, but on which tne Mayor was re
stricted by these regulations, and for that
reason he had not put the law into ef
fect, but desired that Council should see
whether it could function in the place
of the authority of the Mayor in those
respects in which the Council had as
serted an authority and delimited the
Mayor; that further, proper service in
in these particulars would require daily
attention to the duties involved, and
hence that daily attendance of Council
at the Mayor’s office was required. This
declaration was made after an examina
tion of the heads of departments to find
out how often matters covered by the
restrictions would require attention of
the ultimate authority, this examination
being had in the presence of Council. .-.
After the opening of Council on this
date, the 14th day of January, 1925, the
tbe Mayor laid before Council numerous
matters of business, including two freight
bills from the Seaboard Air Line for one
car of coal each, in each case the bill
exceeding $100.00, and therefore being
above the limit of the authority allowed
to the Mayor under the said Ordinance
and restrictive resolution, these freight
bills being dated January 2nd and Jan
uary 7th, and being overdue. There was
also presented a demand from the agent
of the Seaboard Air Line for payment,
this demand being presented verbally
through the' Clerk and Treasurer, Miss
Mary Chalmers. There was also pre
sented a signed letter from the agent of
the Seaboard Line and the Columbia,
Newberry and Laurens Railroad, setting
forth that the Interstate Commerce Com
mission had ruled that railroads must
collect freight within forth-eight hours,
and could only extend the time for pay
ment of freight bill to 96 hours in case
bond wefe made. The Mayor pointed out
that the bills, were overdue and that as
be was restricted in the matter of using
the credit of the town in excess of
$lQj).00, he was unable to rive bond with
out disregarding the said Ordinance. He
was also unable to approve for payment
the freight bills because they exceeded
$100.00, thus coming within the prohi
bition of the said Ordinance, and that
while the resolution had been passed in
Council authorising the Mayor to pur
chase necessary supply of coal, the reso
lution did not include authority to ap
prove bills of coal for payment, nor au
thority to buy freight service, nor author
ity to approve for payment bills for
freight service. He' was therefore tied
hand and~foot in the transaction «nd it
was made necessary for Council to act,
if the said Ordinance and .its amend
to the necessity of the meeting.
The Section 1 of said Ordinance pro
vides, “That on and after the passage of
this Ordinance there shall be a regular
meeting of the Town Council of the
Town of Clinton on the first Monday of
each month at such hour as may be de
termined upon by the Mayor, provided
that when said day tor meeting shall be
a legal holiday, the meeting for such
mouth shall be on Tuesday next ensuing
after the first Monday.” It is my opinion
that this section of said Ordinance is
illegal and contrary to the civil code of
South Carolina, as covering towns with
population in excess of 1,600 and less
than 5,000, in which class the Town of
Clinton exists at the present time, and
that this section of said Ordinance is il
legal in the following respects: that it
undertakes to iet the time of meeting of
the Town Council, whether or not that
time may, in the judgment of the Mayor,
be‘necessary, since it'sets the first Mon
day of each month as the time of meet
ing, and only leaves to the Mayor the
authority to set the horns interposing the
judgment of Council in regard, to the day
of meeting in the place of the judgment
of the Moyar, as provided in the above
quoted Section 4542, paragraph 5, of the
civil code. t
It is my opinion that section 2 of said
Ordinance, which reads, “That four al
dermen shall constitute a quorum of said
Council, and no action on any matter
S lating to the affairs of the Town of
inton shall be taken by said Council
without quorum being present either at
a special or regular meeting” is illegal
because it provides as a quorum of Coun
cil four Councilmen without the Mayor,
whereas it is my opiuiou that the civil
code of South Carolina, as covering
towns of the class of Clinton, requires
the presence of the Mayor, or in the ab
sence or inability of the Mayor to act,
requires the presence of the Mayor pro
tem. This view Council approved when
in their meeting of January 10th, they
amended the above section to read, “that
the Mayor and three members of Council
shall constitute a quorum, except that in
the absence of the Mayor, the Mayor pro
tem and three members of Council shall
constitute a quorum.”
It is my opinion that section 3 of the
said Ordinance is illegal. That section
reads, “That a special meeting to deter
mine any matters relating to the affairs
of said Town of Clinton may be had upon
the request by the Mayor or any member
of said Council at any time, provided
notice of the time and place_pnd purpose
of said meeting be given to all members
arily
January 10, 1925, would give to any
Councilman, without authority of the
Mayor or the Mayor pro tem, authority
to convene at S time impossible or incon
venient for the Mayor or the Mayor pro
tem to attend, and in that meeting, with
only four councilmen present, and with
of the gdrw-nment of th^ town, and neces
sary to the affording of the services of
sanitation, water, light, power and heat,
therefore this Ordinance would be an
abomination if put into actual effect, un
less Council is kept in practically con
stant session to superintend the employ
ment of labor, and when in constant ses
sion It would have to employ labor at
wages in excess of $25.00 per month.
It does not appear to me as clear that
the members of Council in Council as
sembled could employ labor any more
intelligently than the department^ heads
of the city organization acting by the
authority of the Mayor and with his con
sent, and it does not appear to me to be
practicable to require and enforce meet
ings of Council constantly, seeing that
tbe salaries of Councilmen are but $5.00
per month, and they must of necessity
sustain themselves from other sources
than from their municipal salaries, under
which conditions they could hardly be
reasonably expected to attend in con
stant attendance in the Mayor’s office
for the transaction of business of employ
ing labor, which might require at any
purpo
It appears that tne Ordinance as origl u
drawn and as originally passed on t j me ^ attention 0 f the ultimate au-
It is my opinion that when Council
separates between one set of obligations
those exceeding $100.00 and those of
$100.00 or less, it is making a distinction
which would hardly be legal. It is the
obligation of a corporation under the law
of the State of South Carolina to pay
all of its obligations within their legal
limits. It is not competent for the
Town Council of the Town of Clin
ton to make any ordinance which
would excuse the Town of Clinton from
the paying of all of its obligations when
di
A motion was made to approve the
freight bills for payment. The Mayor
asked that consideration of the matter
be postponed until he could make a fur
ther statement in regard to his attitude
on the legality of said Ordinance and
Resolutions. He further stated that
numerous other items of invoices to be
paid, subject to cash discount, and on
which the delay in payment would in
volve a loss of the cash discount to the
town, required attention. Some of these
were presented by the Engineer and some
by the Clerk and Treasurer. He also
presented a requisition from the Engi
neer for materials needed in construction
of the sewer and water works extension
Which he is now superintending, the
requisition involving an amount in ex
cess of $100.00, and therefore under said
Ordinance requiring Council’s attention.
A motion was made to authorize the pur
chase of this requisition. The Mayor
asked delay in the consideration of the
matter until he could announce his atti
tude on the matter of the said Ordinance
and said resolution, as the application of
said Ordinance and said Resolution had
in practice proven their effect an detri
mental to the public interest He then
announced a ruling on said Ordinance
and said Resolution as follows:
MAYOR’S RULING
“It is my opinion that an Ordinance
nassed by Council in n meeting held Jan-
uray 5, 1925, and entitled: ‘An Ordi
nance to prescribe rules and regulations
for a meeting of the Council of the Town
of Clinton; to prescribe rules and regu
lations for quorum; to prescribe the
powers and duties of tbs Mayor and
members of Council; to prescribe the
manner of purchasing supplies and uay-
ment for the same for the Town of Clin-
tion; to prescribe rules and regulations
tor the employment of policemen and
other town employees; and to prescribe
the manner of paying sriarioa wages
and other expenditures of said town,’
together with amendments
covering sections 2 4nd 3 thereof,
amendments were paseed at a
meeting of Gonad! held January
thority.
Section 6 of said Ordinance prohibits
the paying of any bills or invoices for
purchases or making contracts, for ma
terials, supplies, salaries, wages, or any
other obligations of the Town of Clinton
,, . , without first being duly authorized
(WU nan^I anH thefCUntO b.V the ToWU CoUUCil in CoUU-
fho assembled, except that contracts may
S it* entered into and payment may be
Tnurn 8 nf «n n£«- made 0n * 8Uch obligations of the ToWU of
Tow “ Canton Such an organization ( j liutoll wlleu t i, ey do not exwec | $100.00
i e ® R ^ ^ reason of the absrace aud on wa g e8 0 f employees of the Town
of X Ibii™ if ftflEyo? p, ,h ' y d ° “““ * 25 00
tem. It would be illegal because called - n
by a member of Council, without consent,
and therefore without being “in the judg
ment” of the Mayor as to the necessity
thereof, and this illegally constituted
body would proceed to deal with the af
fairs of the Town of Clinton with all the
authority of a legal Council, thus enabl
ing a mere caucus to rob the legal Coun
cil of its authority, and to take control
of the city property and city interests
and of the lives>gpd persons and property
of the people of the town, thereby over
throwing government as constituted in
the corporation by the civil code of the
State of South Carolina, thereby exclud
ing from all authority and power the
Mayor of the Town of Clinton.
It is my opinion that from custom and
also from necessity the Mayor has come
to be regarded as the responsible head of
municipal government, and is therefore
accorded a larger salary than members
of Council. The public looks to him to
rectify wrongs, to see that the law is
executed. He is the head of the Police
Department, and therefore has the power
to act and enforce action. He is respons
ible under the law of the State and the
courts of the State for the integrity of
his actiou. The necessity appears in the
fact that there cannot be seven Mayors
or seven heads of the Police DepartmeLt,
or seven executives who would have equal
power to administer the affairs of the
city. If such were the case it could only
result in chaos and destruction, and the
law manifestly does not contemplate
chaos, but order, so that under the com
mon law the principle of the public’s
good is considered, and is dominant and
would require unity of authority and or
der in administration, without which
there would be great detriment to tbe
public interests, injury to all the tax-pay
ers aud to the city, and to the citizens of
the town, so that both on the grounds of
the common law, and also on grounds of
the code as quoted, it is my opinion that
Sections 1, 2 and 3 of this Ordinance are
illegal, contrary to the code of laws gov
erning tbe corporation of the Town of
Clinton, and therefore null and void.
The remaining sections of file said Or
dinance are not in my judgment in the
I public interest, but detrimental to the
Siting Stid^cTnSl ^ept^how "(Sn!! «ame, .bein$ impra^
! resulting Tn delays in attention to the
tained 1Un ?.^® .9^ ^ (business of the town, which delays are in-
opiniou of the illegality of this section is , j ur j oua and CBU>4e i OB8> and being thus
impraticable and pernicious in effect; are
opinion of the illegality
based on -the fact, admitted by Council
in the above referred to amendment, that
a quorum of Council cannot be had with
out the presence of the Mayor or tbe
Mayor pro tem, and that therefore there
can be no legal Council meeting without
the presence of the one or the other, and
only with the Mayor pro tem' in case the
Mayor is absent or unable to act, where
objectionable to the very spirit of law
and order and of principles of economy
and efficiency with which government
should be conducted.
In section 4 the Mayor and all other
officers of the tiwn are prohibited from
paving any streets or sidewalks or any
iiAajur is ttUBCuu ur uiiuuie w act, wc- j a. f Hnv ai* KiHpwulks mifhnr-
as this section of said Ordinance makes ;
it possible for any member of Connell ‘J* t °' d “I "OP afS
other thau the Mayor, or other than tbe ! ^ . “ Z
Mayor pro tem, id the absence or inabili-! P r '^ ° Q f nv W J
ty of the Mayor to act, to call a special
meeting of Council, thereby extending to
each member of Council an authority
which the civil code of South Carolina
in the above quoted section 4542, para
graph 5, accords to the Mayor only. It
must be clear that if the corporation of
the Town of Clinton has no authority to
extend its own powers, or the powers of
its officers beyond the limit set in the
said code, that Council is not competent
to give a power to any councilman in ex
cess, of the power given to the councilmen
in the code, and is not competent to de
limit the power of the Mayor as set forth
in that code.
The correctness of the above point of
view is supported by the action of Coun
cil in amending section 3 of said Ordi
nance at n meeting January 10, 1925, to
make section 3 read as wollows: “That
the Mayor or Mayor pro tem, in the
event of the inability of the Mayor to
attend, shall call n special meeting of the
Council to consider any matters pertain
ing to affairs of the town upon request
of any two or more aldermen.” It is
my opinion that this amendment is also
Illegal as being contrary to the letter and
to the intent of section 4542, paragraph
of the civil code of South Carolina,
quoted. The amended section 3
makes it mandatory upon the Mayor or
the Mayor pro tom to call a meeting ef
Council when in Che judgment of two or
mere member* R may he necessary,
wbersas the lew provides that tip Mayor
making any purchases of machinery,
equipment, trucks, tractors, wagons, elec
tric light poles, electric wires, coal, ma
terial or any supplies for the Town of
Clinton for cash or upon the credit of
the said Town of Clinton without au
thorization therefor by Town Council in
Council assembled either at a regular or
•egu
thi
a special meeting, except that this pro
vision does uot apply to purchases
1 amounting to $100.00 or less.
This section was later amended by res
olution of Council, authorizing the pur
chase of necessary coal, but without au
thorization to pay the billa for same, and
without authorization to. engage the
movement of the coal from the mines to
the power house of the Town of Clinton,
and without authorisation to pay the
freight on same, and inasmuch as the
railroads are unwilling, and cannot un
der the law, permit an indefinite delay
in the payment of freight, and would
prevent delivery of coal in case the
freight billa are left unpaid, and since
the Town of Clinton cannot make power,
lights, or pomp water, without the coal,
and since the public interest would be
injured and the people inconvenienced
and caused to suffer for lack of water,
power and lights, it is my opinion that
this section of said Ordinance is illegal
on grounds of common necessity because
injurious to the public interest and de-
of tbe order and system ex-
' under' our organization as n body
la which capacity we furnish
they are due, but in order to accomplish
that result, in accordance with this sec
tion, it would be necessary for Council
to reinaiu in session continuously or with
practical continuity, for when Council
would uot be iu session there would be no
ultimate authority to act for the town
and to perform its legal obligations in
the meeting of the payment of wages aud
iuvoice» for goods at the time they are
due.
Iu my opinion the ultimate authority
cannot vacate the obligatiou at any mo
ment of day oi; night to meet the legal
obligations of the town to its creditors,
on any account whether large or small,
and while in actual process of business
daily meetings of Council might meet
the legal obligations of tbe corporation
under these restrictions, it is quite cer
tain that daily sessions of Council would
be essential to such business manage
ment, and daily sessions as above dis
cussed are not practicable, are not con
templated under the law, and in actual
practice have proven a failure by the
oreakdowu of au effort to secure a quo
rum in daily sessions.
It further appears that when the May
or called Council to meet at 9 o’clock on
each day of the week except Sundays and
holidays they failed to appear in the
strength of a quorum on the first such
business day to attend to the business of
the city, that day being the 13tb day of
January, 1925, at which meeting only
two members of Council were present, so
that to secure a quorum at the next daily
meeting of Council, the Mayor issued a
call by mail additional to his verbal call
to Council for daily meetings, and in still
further addition served upon members of
Council another call for the meeting on
the 14th of January, 1925, at 9 o’clock
iu the Mayor’s office, through the thief
of Police in order to enforce attendance
of at least a quorum of Council for per
formance of duties contemplated by
Council under this Ordinance.
Section 4556, paragraph 19, of the
civil code of South Caroliua, for towns
exceeding 1,000 population and less than
5,000, provides: “Negligence of Officer
—For any willful violation or neglect
of duty, malpractice, abuse or oppression U
the Mayor or alderman so offending shall '
be liable to punishment by a flue uot
exceeding $100.00 or punishment not ex
ceeding thirty days, besides being liable
for damages to any person injured by
such neglect, malpractice, abuse or op
pression.
\ This provision of law is evidently in
tended to protect the citizens from in
justice aud tyranny and destruction and
waste of their joint property by abuse
of authority as applying to employees of
the town. It is also evidently intended
to cover the requirements of the officers
that they attend to their duty, which If
neglected would make them not only
liable to fine and imprisonment up to
the limit of $100.00 fine or thirty days
of imprisonment, but also provides that
any individual citizen may secure dama-
cil deserted the meeting the Mayor ex
cused the minority until such time as a
majority could be secured.
This occurred January 5, 1925.
A meeting of Council was called for
January 10, 1925, at which a quorum
appearing the Mayor declared the Cound
again is session—not having .adjourned,
hut only having recessed by- reason of lack
of a quorum. A^ain he urged the atten
tion -to this, particular piece of business
consisting of a contract with Mr. Odi-
orne. Again Council declined to have
the contract read,’ though urged for some
time by the Mayor to attend to their duty
in this respect. Their attention was
called to the fact that they had arro*-
gated to themselves all authoritv in the
haqdlinp: of such contracts and that they
must discharge their duty, and the law
covering the case was read in their pres
ence, and a statement was made that i(:
was the duty of the Mayor, under his
Oath of office to see that the law of the
State of South Carolina was executed.
Nevertheless, under this full statement
by the Mayor, Council failed to act upon
the contract and left it unattended to.
The Mayor took the matter up again
at a meeting of Council on the 12th oi'
January. At this meeting on the 12th
of January that contract was taken up,
considered, approved without reading
and ordered put into effect, subject to
the approval of the Engineer, which it
already had, and subject to the approva
of the City Attorney, but no pro
vision was made for it to be sub
ject to the approval of the Mayor. On
inquiry by the Mayor whether the City
Attorney would make an additional
charge over and above his retainer
fee for the service of going over a
lengthy contract, which would take
about a half day’s work, he replied that
as attorney there would be no extra
charge, but the work would "be done un
der the general retainer fee, but that he
would only pass upon the contract as
regards its legal form and that would not
require the reading of the contract in its
entirety.
The Mayor pointed out to Council that
what they had done amounted to the
spending of thousands of dollars of the
town’s money without themselves know
ing the terms df the contract under which
the expenditure was made, and without
authorizing the Mayor to read for them
the contents of the contract, and that
such inattention to public service consti
tuted neglect and that the Mayor would
not place a contract without'giving it
his personal attention, and that the as
sumption of the authority to handle such
matters in such a negligent way did not
improve upon, but afforded an inferior
service to the Town of Clinton, as com
pared to the service which was being
rendered by the Mayor in close attention
to the details of such matters, and was
therefore not in public interest but detri
mental to the safety of the funds of the
Town of Clinton. Nevertheless Council
took no steps to inform themselves as to
the details of the coutract which they
had ordered into effect.
and for the preserving the health, order
and rood government within the same,
provided that no monopoly shall be
{(ranted in such incorporated dtiea or
towns for the tale of breadatnffs or
meats, and the City or Town Council
may fix by Ordinance and impose by pen
alties for the violation of tbe amid rules,
)y-laws, regulations and Ordinances not
to exceed the sum dl $100 00 or imprison
ment of not more than thirty days, and'
shall appropriate all revenues arising
therefrom to the use of the said corpora
tion.”
However, while above authority i*
given to the City Council for the making
of Ordinances covering the subjects men
tioned, the above paragraph of the civil
code of South Carolina continues as fol
lows :
“Provided such Ordinances, rules and
by-laws or regulations be not contrary
to the laws of the State.”
Now as it is not competent for the
Town Council to make Laws which are
contrary to the laws of the State, nod
»* I as ^Mayor of the Town of Clinton,
the head of the Council, and the Execu
tive Head of the Town of Clinton, am
charged by public opinion and by cus
tom and by necessity with the responsi-
biliy of seeing: first, that tbe laws of
the State of South Carolina, as govern
ing the legislation of the Town of Clia-
top, are observed; and second, as I am
charged, as the head of the city govern
ment, with myself obeying the laws of
the State of South CaroOua, it is my
duty, believing as I do that the said Or
dinance, its amendments and the re
strictive resolution are illegal, to decline
to put same into effect, since to do otiier-
wise would be contrary to the law of
South Carolina, to the detriment of tbe
public interest of the citizens of Clinton,
and to the injury of the corporntioi
the Town of Clintoir; nntf'fco'tne discredit
of the Town of Clinton, and it is my
opinion that if I should fail thus to fule
as null and void an Ordinance so clearly
opposed to the law of the State of Soutn
Carolina and to public intereet, I would
have failed of my duty, and myself be
actionable for that failure or neglect of
duty.
1 would further point out in regard
to said Ordinance that it contains no pen
alties and for lack of penalties cannot
be enforced, so that while those officers
and employees of tbe Town of Clinton
who respect the law would be prohibited
from acting in necessary matters without
injurious delay, others might desregard
this Ordinance, its amendments and the
resolutions of Council further amenda
tory thereof, with impunity since the
Mayor would have no power ns head of
the Police Dearptment to have such per
son or person apprehended and tried for
an infraction' of said Ordinance, its
amendments and the amendatory resolu
tion of Council.
I therefore hold that not only is the
Ordinance illegal under the code of South
Carolina, illegal under the common law,
but also worthless and useless as being
incapable of being administered.
1 further declare that as public inter
est seems to require a statement I will
not permit in the future the dismissal of
any employee of the city government by
arbitrary action of Council without
charges being brought against such em
ployee apd proper investigation of
charges being made, and in the event that
such power is usurped by Council and
thus abused, contrary* to the public in
terest, and to good order, and contrary
Moreover, certain invoices were pre
sented to Council at this meeting. Coun
cil was informed that failure to pay the , . ,. . . .4.
^invoices would forfeit cash discouts; I , r ?*. . RR . ( justice, and of the proper
that there was monev in the tren.mirv with administration of the town s affairs, I
ary
to the rights of individuals so employed,
wV that they are discharged without re
course, without due process of law and
without just reason being given and con
sidered, then I declare it to be my duty
as Mayor of the Town of Clinton to
bring action against any and all mem
bers of Council who may by, their vote
so discredit and injure any employee of
the Town of Clinton, and I further order
that no member of Council shall threaten
any employee of the Town of Clinton
with dismissal on political grounds or
without rroimd and that no member of
(Council snail intimidate employees of the
Town of Clinton against doing their duty
an thev conscientiously believe it to be,
with threats of having them turned out
of office.
This declaration I make because it has
not onlv been rumored on the streets that
a member of Council contemplates dis
charging employees of the town, but also
a threat was made in Council by a Coun
cil member against an employee of the
town is such form as to constitute an
intimation that his position was en
dangered by reason of his displeasing
that member of Council,
Hence in behalf of law and order and
that there was money in the treasury with
which to pay the bills, aud that these
bills should have executive attention and
approval iu order to save the town the
money involved in the cash discounts;
also that there were freight bills overdue
aud requiring payment, the non-payment
of which threatened the orderly manage
ment of the water and light department.
Nevertheless Council adjourned without
atttending to these details, to which in
the ordinary course of business the May
or is accustomed to attending, first by
requiring the head of each department to
audit the invoices and O.K. same by sig
nature of the departmental head; and
second, by personal examination and ap
proval and signature of the Mayor as an
order to pay, after which, and only after
which, the Clerk and Treasurer pays the
obligations that are due.
Council was also informed that^the or
derly system in force heretofore.had been
in regard to purchases, that requisitions
would be made by heads of departments,
and if necessary discussion entered into
with them, aud if necessary salesmen
and others interviewed and careful inves
tigations made iuto prices, terms, quality
Of all goods purchased, and that no goods
were purchased without a departmental
head requisitioning same und approving
of the purchase, and no goods purchased
without the approval of the Mayor after
intelligent apprehension of the trans
action, and therefore no bills paid with
out the O.K. of the departmental head
and the approval signature of the May
or; that Council was unable to perform
such service unless it remained in coh-
mt session.
Nevertheless, with .all this information
before Council of the necessity of a con
stant session (if this Ordinance was to
be effective) Council failed of attendance
at the first daily session required by the
Mayor.
It is therefore my opinion that the said
Ordinance with its amendments and also
the restrictive resolution, restricting pay
rolls. are illegal because contrary to the
make the above declaration of policy, be
lieving it my duty as the Mayor to so
declare.
I further declare that it is my ruling
that It is improper for any member of
Council or group of Councilmen to so
licit of the City Attorney, acting as the
City Attorney, the preparation of any
ordinance which tends to disturbance of
the peace of Council and the orderly pro
cedure of the business of the Town of
Clinton, unless such request is made by
Town Council in Council assembled and
legally constituted, and I further declare
it Is
my opinion that the City At-
been legally retained un-
| ;es for any injury lesulting from the neg-
ect of duty, malpractice, abuse or op
pression on the part of a mayor or aider-
man.
Under this provision of the law had
the Mayor signed and put into effect
said Ordinance, it would have been in
cumbent upon him to have brought act
ion against all member* of Council who
absented themselves from tbe call meet
ing which he had called, and at which
be intended to give them tne opportunity
of discharging those functions which by
said Ordinance they had withdrawn from
the Mayor and from all other officials,
and assumed ns their obligation. They
clqarly failed to perform those functions
not ohly in nqo-attendhacJe at said call
mfcetn^, thereby leaving the business of
the town unattended to. and at least 12 convenience of the said
Ji. ■- ~
public interest, injurious to the orderly
conduct of the town’s business, detri
mental in the loss of cash discounts aud
in the threat of a possible inability to
serve the people with water and electric
current und in other respects.
I, therefore, J. F. Jacobs, Mayor of
the Town of Clinton, decline to sign said
Ordinance and decline to affix the seal
of the Town of Clinton thereto, and de
cline to put into effect the provisions
thereof, and the provisions of the resolu
tions restricting payrolls.
This action is taken, as the Mayor be
lieves, in public interest and in accord
with law as provided in the Civil ('ode
of South Carolina for towus having a
population of more than 1,000 and less
than 5,000, section 4544, paragraph 7,
which rives the Town Council of thd
Town of Clinton authority to make Ordi
nances regulative of the affairs of the
town in the following sentences:
“Policy Powers—And the said City or
Town Council shall have full power to
make, ordain and establish nil such rules,
by-laws, regulations, ordinances respect
ing its roads,
health, and for
streets, markets, police,
the security, welfare rnd
'W
that
torney, having
der a retainer fee by the Town of Clinton
cannot, with due respect for legal ethics,
serve under the leqal retainer fee, or
otherwise, any individual whether in the
Councillor out of the Council, whose pur
pose it may be to disturb the orderly
government of the town and to restrict
the authority of its chief executive, heads
of departments and its other employees.
It is my opinion that the City Attor
ney owes allegiance to the Town of Clin
ton as represented legally by the Mayor,
who is the chief executive, the Town
Council^ which is the legislative body,
the Chief of Police and the Recorder,
who are in charge of the law and order,
and to no other as regarding the town’s
affairs; that advice required by the
Council canpot be so required except by
majority action iu Council duly assem
bled and legally constituted.
Signed: J. F. JACOBS,
Mayor.”
During the delivery of the above rul
ing by the Mayor Councilman Blalock
asked if he might speak. The Mayor de
clined to he interrupted, but advised Mr.
Blalock that he would be heard imme
diately On the completion of the ruling.
Later he again interrupted and was re
quired by the Mayor to keep sileut. Oth
er interruptions occured by Councilman
Stone and Councilman Blalock, leading to
the Mayor’s statement that he would have
to cull the police to keep order. As the
interruptions continued he sent for the
Chief of Police and on arrival of the
Chief of Police, as the interruptions still
continued he ordered Mr. Blalock under
arrest, and as Mr. Stone asked to be put
under arrest he was also ordered under
arrest for contempt of Court, or disor
derly conduct in Council, interrupting
proceedings and disturbing the Mayor in
declaring a legal opinion.
y. Immediately thereafter a motion was
made to adjourn, affording no opportun
ity to consider the earlier motions which
the Mayor had asked permission to hold
up until he could get his ruling full/ be
fore Council, which declaration of the
Mayor’s opinion would make the motions
unnecessary.
Council then adjourned and the Mayor
ordered the Chief of Police to release
Messrs. Blalock and Stone, and to enter
no charge*.
The above information 1* published by
Mayor Jacobs and paid for out of per
sonal funds, as on advert!—ment. on hie
opinion that the public should have the
Information, bat that the town treasury
~ * 1 exVeam.
\
or Town, cannot afford the
Y