Smith v. City of Winder , 1918 Ga. App. LEXIS 302 ( 1918 )

Wade, C. J.

1. The charter of the City of Winder (Acts of 1893, p. 223) authorizes its mayor and council “to make, ordain and establish' from ' time to time such by-laws, ordinances, resolutions, rules and regula1' tions as shall appear to them necessary and proper for .the good govern-; ment, security, .welfare, and interest of said City of Winder and the inhabitants thereof,”'etc.

(a) An ordinance duly adopted which named a certain'bank in the' City of Winder as the city .-depository, and a further ordinance providing that the treasurer and other officials of said city should deposit funds be-, longing to the municipality in the designated city depository, to be. there kept until properly checked out by legal vouchers, and providing, that the treasurer, clerk, or other city official holding funds of said1' city who should fail or refuse to comply with this requirement should' be removed from office by the mayor and council after the fact of such, failure or refusal should have been established, was not void because ultra vires. The broad general authority conferred by' the charter sufficiently authorized the passage of an ordinance apparently designed to' safeguard-the property of the city. See, in this connection, City of Atlanta v. Holliday, 96 Ga. 546, 553 (23 S. E. 509).

2. The charter of the City of Winder (Acts of 1893, supra), provides that the mayor and council shall elect a city treasurer and other officers whose compensation shall be fixed by the mayor and council and “whose duties, shall be prescribed by ordinance,” and that they shall each- hold “his office for one year, or until his successor is elected and qualified, unless removed for causes to be judged of by the mayor and aldermen.” While the treasurer was elected for a fixed term, this term might be terminated at any time “for causes to be judged of by the mayor andv aldermen,” and the cause of removal having been so “judged of” .and appearing to be reasonable in this case, it is unnecessary to determine whether it was within the power of the mayor and council to remove such officer at their pleasure only, and without reasonable cause.

3. The petition for certiorari itself' shows1 tliat the treasurer refused to-obey the ordinance requiring him to deposit city funds in a named bank, though duly notified thereof in writing; that he was- cited and appeared before the council; that the ordinances naming a city depository, and providing a penalty of removal for refusal to obey the same, were read to him, and he was requested to answer if he had obeyed the sainé, and he replied that he had not obeyed and did not intend to-obey, because he had been advised and believed that the said ordinances were void and that he had the right to deposit the funds of the municipality where he pleased. If the ordinances were valid, the open insubordination of the treasurer and his positive and formal refusal'to comply therewith furnished abundant “cause” for the removal from office in compliance with the last of the previously adopted ordinances. See Parker v. Farlinger, 122 Ga. 315 (50 S. E. 98).

4. While it is improper and illegal for a member of a city council to vote upon a question in which he is personally interested (Civil Code, § 900)’, and a contract entered into between a municipality and a private corporation under which the latter is to perform certain work for which payment is to be made out of the city treasury “is void if at the time of its execution one of the members of the city council was also a stockholder in such private corporation” (Hardy v. Gainesville, 121 Ga. 327, 48 S. E. 921), an ordinance naming a certain bank as the city depository. and requiring the treasurer of the city to place all the municipal funds coming into his hands ’ therein is not necessarily void because the mayor of the city and one of the eouneilmen voting to' adopt the ordinance were respectively officer and director of the .bank named as depository, since it nowhere appears that any financial profit would result to said bank so named as depository, in which -the.pnayor and council owned stock, or that any contract whatever was made between the city and the private corporation in which said city officials were interested whereby any benefit direct or indirect could or would reasonably accrue to said bank,, the money to be placed therein being-on demand and subject to immediate check. The presumption is in favor of the city officials and of the ordinances. See Carter v. Griffin, 113 Ga. 633, 634 (38 S. E. 946).

Decided May 14, 1918.

Certiorari; from Barrow superior court—Judge Cobb. June 29, 1918.

Bollin II. Kimball, for plaintiff in error. G. A. Johns, contra.

5. The judge of the superior court did not err in overruling the petition for certiorari.

Judgment affirmed.

Jenlcins and Lulce, JJ., concur.