The Palatka news and advertiser. [volume] (Palatka, Fla.) 1902-1905, 1902-06-19

city or town is hereby authorized
and empowered to enter into an
agreement with gas, electric light OF
water works companies for lighting
the streets or constructing and oper-
ating water works in such city or
town, provided such agreement shall
be ratified by majority vote of the
treeholders of such city or. town and
voting at an election to be held for
the purpose of ratifylng said agree
ment. Provided further, that copy
of the agrt ement, together with Il
notice of such election, shall be pub
lished in newspaper in such city OF
town for four consecutive weeks
prior to said election.
''Sec. 2. That under the provisions
of this. act no city or town shall
through the council of said city o.
town, contract or agree to pay in any
one year for any of the purpose
enumerated in Section.1 of this nc
il sum of money exceeding four mills
on the assessed valuation of the
property of such city or town"
The contract was approved by Il
resolution of the council when il
should have been regularly adopted
by an ordinance which required the
approval of the mayor. On that
point. Attorney Bars says: "This
contract was submitted to the town
cJuncil and was approved only by
resolution and not by an ordinance.
The contract, then, is not Il valid ont
and could not be enforced through
the courts, us contract can only be
made by city or town in compliance
With an ordinance duly adopted
The contract is also invalid because
the proceedings were not conducted
in accordance with the act above
quoted. 1t was not advertised fol
our weeks and was not ratified by
majority vote of the freeholders OF
the town.
A protest against the payment OF
the claim was presented to the coull
ell, signed by some of the larges
taxpayers in the town, setting fort
the e sons why such claim should
n 1t he allowed. The council obtained
t legal opinion Of The Hon. 5. j.
H burn on The subject. We applied
OF copy OF that document or til,
privilege of inspecting it at the tow
clerks office. The clerk offered friV-
Jlous and Inconsistent excuses foI
rot producing it or furnishing a copy
aud finally mailed II communication
which said, II am instructed by
members of the board to withhold
.he opinion for the present at least.
Here the council orders the clerk TO
violate the law in the performance
Of his duties. 1t orders him to sup
Il 10 in a
office when the law requires the
clerk to keep open for purposes OF
inspection by the public the docu-
ments and records in his care and
custody as such official. 1t WAS ali
effort to conceal the fact that in al
lowing the claim the council haG
acted contrary to the advice con-
tanned in that document. We Were
able to obtain the points of the opin-
ion from another source, which IL.
substance were that the contract was
not legally entered into, and as the
former council had notified the water
company that no further payments
would be made, there was no Longer
any liability on the part of the town
under the contract; however, If they
did misappropriate money out Of the
town treasury and pay the claim, the
statutes of Florida did not make it a
criminal OffensG. Legal or Illegal
the claim of the water company was
going to be allowed, so it was de
clared, if the members of the council
were not liable to a criminal prosecu-
tion. That it demorialiZed the finan-
ces of the town and opened field to
litigation did not in the least influ
ence their action.
@Councilmen are required by theiI
oaths, when installed in office, to
perform the duties imposed upoi
them faithfully and to transact the
business committed to their charge
as the law directs. Here there has
been willful neglect of duty and al
act committed in defiance of.the law,
They have knowingly misappropri-
ated the public funds by paying II
claim where there was no liability
on the part of the town and against
the advice of counsel, and by reason
of such action the members of the
council have made themselves or the
recipients of the funds liable to an
action at law for the recovery of the
funds thus misapprOpriated.
There is another feature of the
contract where the law has not been
complied with. Section 2 of the act
above quoted expressly prohibits the
paying of sum of money exceeding |
four mills on the assessed valuation
of the property of the town in any |
one year. Even though all the pro-
visions of the law under Section |
were fully complied with and the |
contract was in other respects valid,
any appropriation above the four
mills limit is unauthorized and to |
that extent unlawful.
The recorG shows that the appro-
priations have exceeded that sum |
every year since the contract was en-
tered into. The assessed valuation
of the property of the town for the
year 1901 was S7S,33O.OO. The total
authorized to be appropri-
ated on that valuation is $3l3.32. The |
annual payment under the contract |
is $4,000. There has then been over
paid to the water company and con-
trary to the provision of Section 2,
$91 .6S, for the year 1901, and during !
the eight years since the contract |
was entered into there has been paid |
over and above what is authorized |
by the act, including interest, the |
sum of $d37.85.
1t is said that there may be moral |
to fulfill the contract on
the part of the town. A moral obli-
CATION implies that there was once a
legal one-that the contract was reg
ularly entered into and in good faith |
by such parties as the law specifies
shall take part in the proceedings of |
of framing such contract.
AS has been stated the contract