CHAPTER 264

AN ACT TO REINCORPORATE THE TOWN OF MAGNOLIA.

Be it enacted by the Senate and House of Representatives of the State of Delaware in General Assembly met (two-thirds of all the Members elected to each House concurring therein):

Section 1. That the inhabitants of the Town of Magnolia, Kent County, Delaware, be and they are hereby constituted a municipal corporation and body politic.

The name and style of the said corporation shall be "The Town of Magnolia" by which name the said corporation may sue and be sued, plead and be impleaded, complain, answer and defend suits in all Courts of this State.

The said corporation shall have and use a common corporate seal of its own devising with power to alter and renew the same.

The said corporation may hold and acquire by purchase, gift, devise, lease or condemnation real property and personal property within or without its boundaries for any municipal purpose in fee simple and in lesser estate or interest, and may sell, lease, hold, manage and control such property as its interests may require; and shall have all other powers and functions requisite and appropriate for the government of the Town, its people and order, its sanitation, appearance and beauty, the health, safety, convenience, comfort and well-being of its population and the protection and preservation of property, public or private.

The enumeration of particular powers by this charter shall not be held or deemed to be exclusive but in addition to the powers enumerated herein shall include all powers implied thereby, or appropriate to the exercise thereof, and it is intended that the Town of Magnolia shall have and may exercise all powers which, under the constitution of the State of Delaware, it would be competent for this charter specifically to enumerate. All powers of the Town of Magnolia held, expressed or implied, shall be exercised in the manner prescribed by this charter, or if not prescribed herein then in the manner provided by ordinance or resolution of the Council.

Section 2. That the limits of the Town of Magnolia shall be and determined by measuring from a stone in the center of the main roads leading from Dover to Frederica and from Canterbury to Barker's Landing, at the intersection of the said roads in the Town of Magnolia, and measuring from the said stone one-fourth (1/4) of a mile in all directions, forming a radius or circle of one-half mile in diameter through the center of the said circle in any and all directions.

The Town Council of the Town of Magnolia is hereby authorized to have a survey made of all the territory embraced within the corporate limits of the said Town of Magnolia which survey shall show all roads, streets, lanes and alleys within the limits of the said Town and to cause a copy of the same to be recorded in the office of the Recorder of Deeds at Dover, and the copy thereof so recorded in the Recorder of Deeds office at Dover shall be received as evidence in all the Courts of this State.

Section 3. The governing body of the Town of Magnolia shall be a Town Council composed of five (5) members whose terms shall be as hereinafter set forth and who shall serve until their successors shall be duly elected and qualified and each of whom at the time of nomination and election shall be a resident of said Town, above the age of twenty-one (21) years and the owner of real estate within said Town, provided, however, that any married man, otherwise qualified, whose wife is the owner of real estate within said Town, any married woman, otherwise qualified, whose husband is the owner of real estate within said Town, may be nominated and elected a member of Council although such person may not be the owner of real estate within said Town, and real estate in said Town owned jointly by husband and wife shall make both husband and wife eligible, if otherwise qualified. No person shall be eligible for nomination or election who shall not have paid, prior to the filing of his nomination, all Town taxes theretofore assessed to him, and also all water and sewer rents theretofore due from him.

Members of Council shall be nominated and elected as follows: There shall be an election held in some public place selected by the Council within the limits of said Town on the second Tuesday in January in 1960 from the hour of seven o'clock p. m. until the hour of nine o'clock p. m. for the election of five members of the Council, two of said members to serve for a term of one year and three of said members to serve for a term of two years. Thereafter, at each annual town election to be held on the second Tuesday in January in each year during the hours aforesaid, and at the place aforesaid, the successor of each member of the Council whose term then expires shall be elected for the term of two years and until his successor has been duly elected and qualified.

At any annual or special election within said Town every person resident in said Town above the age of twenty-two years who shall not be delinquent in the payment of any taxes assessed against such voter and who has resided in the said Town for at least one year prior to the holding of such election shall be entitled to vote.

All elections under the provisions of this charter shall be held by five persons designated by the Council of the Town of Magnolia for such purpose, and it shall be the duty of such persons so designated to hold such election on the day and between the hours designated and to keep an accurate record of the votes cast and report and certify the same to the Council at its next meeting. In the event that the second Tuesday of January in any year shall fall on a holiday then such election shall be held on the Tuesday next following. Any vacancy in the Election Board shall be filled by the remaining members of said Board. In the event of a tie vote for any office, the Election Board shall determine the tie by lot. All persons desiring to be candidates at any municipal election shall file with the Secretary of the Council a written statement of their candidacy at least ten days previous to said election, and a vote cast for any person whose candidacy has not been so filed, shall not be counted.

The election shall be held in some public place selected by the Council within the limits of said Town after ten (10) days' notice thereof by Council posted in at least five (5) of the most public places in said Town.

Council shall cause to be printed ballots, at least as many in number as the approximate number of citizens in said Town entitled to vote at the election. Such ballots shall contain the names of all persons duly nominated, under headings designating the offices for which nominated and such ballots shall be delivered to the persons appointed or selected to hold the election at the opening of the polls, and every citizen calling for a ballot shall receive one from the election officers.

On the second Tuesday in February, A. D. 1960, and on the second Tuesday of February of each year thereafter, the members who shall have been elected to the Town Council of the said Town of Magnolia, as well as the hold over members of said Town Council, shall meet for the purpose of organizing by the election of officers and such other business as may come before such meeting. Such meeting shall be known as the "Annual Meeting" of the Town Council. At the Annual Meeting one of the members of the Town Council shall be designated and elected by the members of the Council as and for the Mayor of the Town of Magnolia, and one of the members of the Town Council shall be designated and elected by the members of the Council as and for the Vice-Mayor of the Town of Magnolia, and one of the members of the Town Council shall be designated and elected by the members of the Council as and for the Vice-Mayor of the Town of Magnolia.

If any vacancy should occur in the membership of the said Council, by death, resignation, removal from town, refusal to serve, or otherwise, the remaining members of Council shall have the power to fill such vacancy until the next regular election.

Section 4. It shall be the duty of the Mayor of the Town of Magnolia, or in his absence it shall be the duty of the Vice-Mayor, to call a special meeting of the Council at any time, first giving reasonable notice thereof upon the application of at least two members of the Council of the Town of Magnolia. At any regular or special meeting the Council may pass upon such ordinances, resolutions or matters affecting the good government and requirements of the said Town, the improvement of the streets, lanes and alleys, the paving or other improvements of the streets, lanes and alleys and all other matters relating to the said Town, its sanitation, ornaments, improvement and general welfare, as by said Council may be deemed proper. The Council may by ordinance impose fines, penalties and forfeitures for the violation of any of the ordinances of the Town and may provide for the collection thereof.

Section 5. The government of the said Town of Magnolia shall be vested in the Mayor and Town Council which shall exercise all of the powers conferred by any of the provisions of this charter, except as otherwise provided herein.

The Town Council shall constitute the legislative body of the said Town of Magnolia.

The Town Council in addition to the powers hereinbefore conferred shall have power to regulate the streets, lanes, alleys and sidewalks of the said Town, and direct the sidewalks, or such part thereof, as they may determine to be paved or otherwise improved at the expense of the owner of the property adjacent thereto; on complaint of any citizen to examine any chimney, stove pipe, fixtures, or any other matter or object dangerous to the Town or to the welfare of the citizens and property of said Town, and if adjudged dangerous to cause and require the same to be repaired and remedied, or, if necessary, to be removed; to prevent or remove nuisances in said Town; to prohibit the firing of guns and pistols, the making of bonfires or setting off of fireworks or any dangerous sport; and to suppress and prevent any noisy and turbulent assemblage of persons within the said Town.

Section 6. The Council shall, at the Annual Meeting in every year, determine the amount of tax to be raised in said Town for that year, not exceeding Five Thousand Dollars ($5,000.00), and shall appoint an assessor to make an assessment of persons and property therein, and shall also appoint a Collector and Treasurer. It shall be the duty of the Assessor of said Town, within two weeks from his appointment to make a true, just and impartial valuation and assessment of all the real estate and assessable personal property within said Town, and also an assessment of all citizens residing in said Town, above the age of twenty-one years, as well those owning real estate as those not owning real estate in said Town; and the said Assessor shall forthwith, after making such assessment, deliver to the Council for the time being a copy of such assessment, containing the names of all the persons assessed and the amount of their assessment, distinguishing the real and personal assessment of each. When the assessment is returned, the Council shall give five days' public notice of the fact that it will sit, at a place and on a day to be by it designated, from seven o'clock p. m., to nine o'clock p. m., to hear appeals from said assessment. It shall have power at such time to add to or lessen any assessment. When the appeal day has passed, the Council shall, without delay, cause the assessment list to be transcribed and the copy to be delivered to the Collector, who shall thereupon collect from each taxable the amount of his tax and pay over the whole amount to the Treasurer, by the 30th day of November. The Collector shall have the same powers for the collection of said taxes as are conferred by law on the collectors of county taxes. The Treasurer and Collector shall each give bond to the Council for the proper discharge of their respective duties.

Section 7. The Council shall have authority to use the money in the Treasury of the Town for the general improvement, benefit and ornament of the said Town, as it may deem advisable; but no money shall be paid out by the Treasurer except upon the approval of the Town Council or upon written order of an officer designated by the Council to approve such payment.

Section 8. Whenever Council shall by ordinance or resolution direct the paving or improving of the sidewalks of the said Town, or any part thereof, the Secretary of the Council shall immediately give notice to the owners of the property abutting thereon by serving such notice personally on the owner or owners thereof if such person or owner shall be resident in the Town of Magnolia; otherwise, it shall be sufficient notice if the Secretary shall post a notice on the property or properties affected by nailing or otherwise attaching such notice upon a conspicuous place on the said property affected or at the front door of the main building if such lands be improved. If such ordinance or resolution be not complied with within three months, the Council may direct the work to be done and the expenses of the same shall become a charge against the owner or owners of the property affected. The Council may on ten days' notice by advertisements posted at three of the most public places within said Town sell any personal property or any of the real estate of the party or parties in default as shall be necessary to pay the expenses, together with costs, of such proceeding resulting from the improvements so made. Such sale shall be at public auction and notice of said sale be served on the owner or owners of the said property affected if they be resident within the corporate limits of said town. Otherwise, notice shall be served by posting a copy of the advertisement of said sale at the front door by the main building located on the lands affected if the same be improved, or upon a conspicuous part of such lands if the same are unimproved, and notice shall be sent to the owner or owners or to any of them, if known, by registered mail, addressed to the last known post office address of such owner or owners or any of them. Such sale shall transfer all the right and title of the person or persons in default in the property sold to the purchaser or purchasers thereof and the Mayor of the Town of Magnolia is hereby authorized to execute under the seal of the corporation a deed or deeds conveying title to the lands and premises sold under the provisions hereof. The proceeds of such sale shall be paid to the Treasurer for the use of the Town, but if there be any surplus after the payment of the claim, together with all costs and expenses for which the sale was made, such surplus shall be paid to the party or parties in default if known, or if unknown such surplus shall be deposited in a depository to be designated by the Council of the Town of Magnolia to be there held until sufficient proof of the identity of the parties entitled shall have been established.

Section 9. At the Annual Meeting the Council shall elect an Alderman for the term of one year, or until his successor has been duly chosen and qualified.

The Alderman may be removed during his term by a vote of three-fourths of the members elected to the Council.

In case of temporary disability of the Alderman to perform his duties by reason of sickness or absence, or otherwise, the said Council may at any meeting appoint an acting Alderman for the period of such disability.

Before entering upon the duties of his office, the Alderman shall be sworn or affirmed to perform the duties of his office with fidelity.

The Alderman shall have jurisdiction and cognizance of all breaches of the peace and other offenses committed in the Town so far as to arrest and hold for bail, or fine and imprison offenders; and also of all fines, penalties and forfeitures prescribed by this charter or any law of the State or by any ordinance of the Council and also of all neglects, omissions or defaults of any member of the Town police force or other city officer or employee, provided that in the case of violation of an ordinance, he shall impose no fine or penalty in excess of that fixed by the ordinance and shall not commit to prison for a longer term than thirty days in default of the payment of a fine imposed by him. The Kent County Correctional Institution may be used for imprisonment under the provisions of this Act provided that the Council shall pay for the board of persons committed for breaches of ordinances that do not constitute breaches of the general law. Within his jurisdiction as aforesaid the Alderman shall have all the powers and authority of a Justice of the Peace for Kent County.

Any action, suit or proceeding authorized under any of the provisions of this charter or under any ordinance of said Town may be instituted in the name of "The Town of Magnolia."

His fees for any service under this Section shall be the same as those of a Justice of the Peace for like service, and for any service or duty for which no fee may be provided by law the fee may be established by ordinance of the Council.

Upon the expiration of the term for which he was chosen, or if any Alderman shall be removed from his office by the Council as hereinbefore provided, he shall deliver to his successor all the books and papers belonging to his office, and shall pay over to the Town Treasurer all moneys in his hands belonging to the Town within five days after his removal. Upon neglect or failure to make such delivery or payment, he shall be deemed guilty of a misdemeanor, and, upon conviction thereof shall be fined not more than Five Hundred Dollars, or be imprisoned in the discretion of the Court.

The Alderman shall, at the monthly meeting of the Council, report to the Council all fines imposed by him during the preceding month, and pay to the Treasurer of the Town all such fines and penalties received by him during the said period, and in default of making such report or paying such fines and penalties for a period of twenty days after such report should be made and such fines and penalties should be paid as aforesaid, he shall be deemed guilty of a misdemeanor, and upon conviction thereof shall be fined not less than One Hundred Dollars nor more than Five Hundred Dollars.

Section 10. The Town Council of the Town of Magnolia shall have the right to lay out, open, vacate and close any street, lane or alley within the corporate limits of the said Town whenever Council shall deem such to be advisable and for the best interest of the Town; provided, that no street, lane or alley shall be opened, vacated or closed without giving due notice to the property owners abutting on such street, lane or alley to appear and show cause if any they have why such street should not be opened, vacated or closed and if it shall appear from such hearing that such proposal would be inadvisable then the Council shall abandon such proceedings. If it be determined that such proceedings are advisable and that any person or persons will suffer damages to any property or properties as a result of such actions Council shall assess and determine the extent of such damages and shall pay such damages to the person or persons so affected before entering upon such lands or premises so affected. In the event that the owner or owners of the property affected and the Council cannot agree upon damages, then and in the event such owner or owners shall appoint one disinterested person, the Council shall appoint another disinterested person, and the person so designated shall appoint a third disinterested person who shall go upon the lands and premises affected and shall assess the damages to such person or persons or the owner thereof and upon the determination and award by the disinterested persons such findings shall be final and conclusive and it shall be the duty of the Council of the Town of Magnolia to pay such award or damages within thirty days next after the awarding of the same or else to abandon such proposed change.

Section 11. At the Annual Meeting of the Town Council the Council shall elect a Treasurer for the Town of Magnolia. The Treasurer may or may not be a member of the Council. He may also serve as Secretary of the Council. It shall be the duty of the Treasurer to receive all moneys due the Town of Magnolia from the Collector of Taxes, and from any other source or sources to keep the same deposited in a depository to be designated by the Council, and to pay such charges or claims against the Town as the Council or the Mayor shall from time to time designate and direct. He shall account at each regular meeting of the Council, and more often if required, showing in detail the receipts and disbursements of the Town funds. Before entering upon his duties the Treasurer shall be first sworn to diligently and faithfully perform the duties of his office, and shall enter into bond to the Town of Magnolia with surety to be approved by the Council in such amount as the Council shall designate to faithfully and diligently perform the duties incumbent upon him as Treasurer of the Town of Magnolia and a true and correct accountancy to make of all the moneys received by him as Treasurer of said Town of Magnolia. The cost of the bond shall be paid by the Town of Magnolia.

Section 12. At the Annual Meeting of the Town Council the Council may elect a Collector of Taxes whose duties it shall be to collect all taxes which shall be assessed pursuant to the provisions of this charter. He shall make a monthly accounting to the Treasurer of said Town and shall pay over to said Treasurer such sums as from said accounting shall be found due the said Town. The Treasurer shall give receipts for the money so paid. Before entering upon his duties the Collector shall be sworn or affirmed to diligently and impartially perform the duties of his office. He shall also enter into a bond to the Town of Magnolia in such sum as The Council shall designate to faithfully perform the duties of his office and to make a just accounting of all moneys received by him for the said Town of Magnolia and to pay over to the said Town of Magnolia all moneys received by or charged to him as such Collector. The cost of the bond shall be paid by the Town of Magnolia. The Collector may or may not be a member of the Council while serving as Collector. The Council shall fix the compensation of the Collector. The Collector shall be charged with the full amount of the tax debit received by him, and it shall be his duty to collect the same; provided, however, that The Council may for cause shown, permit the allowance of any delinquencies as the Council may deem proper. At the regular meeting of the Council held during the month of February of each year, the Collector shall make a detailed report of all moneys collected and a list of those owing taxes not received and collected by him.

Section 13. The Council shall have the power and authority to enter into contracts for the supply of electrical energy and power for municipal uses, and shall have the authority to contract for the purchase and resale of electrical energy and power to the residents of the Town of Magnolia.

The Council shall have the power and authority to employ such person or persons as shall be required from time to time by the Town and shall fix the compensation of such employees.

The Council shall elect one or more persons to serve as police officers for and on behalf of the Town and shall fix his or their compensation. Such police officers shall be under the direction of the Mayor of the Town except as Council shall otherwise direct. It shall be the duty of such officers to police the Town of Magnolia and they shall have all the powers of the Constables of Kent County within the Town limits and within one mile adjacent to the corporate limits of said Town.

Section 14. The Mayor of the Town of Magnolia shall be a member of the Town Council and shall preside at all meetings thereof, unless the Mayor or Vice-Mayor be personally interested in the matter before the meeting, in which event, or either of them, the other members of the Council shall designate one of their number to preside. The Mayor shall be the executive officer of the Town. He shall execute all legal instruments on behalf of the Town, and shall have such other duties as the Council by ordinance or resolution shall impose. He shall have general supervision over the police and over all employees of the Town, and shall have the right to hire or dismiss any employee, except the Treasurer, the Collector of Taxes, the Alderman and the Town Solicitor.

Section 15. The Council shall designate one of their members as Secretary whose duty it shall be to keep an accurate record of all meetings, and of all matters relating to the Town as shall come to him. The Secretary may or may not be the Treasurer of the Town. He shall keep the corporate seal of the Town and shall affix the same to all instruments requiring the same upon resolution of the Council authorizing and directing him to do so. The record of the Secretary shall be received in evidence.

Section 16. The Council shall have the power to borrow in any one year a sum not in excess of Five Thousand Dollars ($5,000.00) and to anticipate current revenue by such sum so borrowed whenever the needs of the Town shall require more money than is at the time in the Town Treasury from current receipts.

Section 17. Council shall have the power to exempt from municipal taxation for a period not in excess of ten consecutive years any property otherwise subject to municipal taxes, and which property is being used in any new industrial enterprise within said Town.

Section 18. No compensation shall be paid members of Council except as otherwise herein provided unless the same shall be first approved at the annual or at a special election of the voters qualified to vote at the municipal elections of said Town.

Section 19. The Council shall have the power to condemn any property real or personal within the Town limits as shall be necessary for municipal purposes. The procedure thereof shall be the same as that for the laying out of streets as set out in Section 10 hereof; provided, however, that if the damages sustained by any party interested shall exceed One Thousand Dollars ($1,000.00), and such party shall be dissatisfied with the award made under Section 10 hereof, such party may file an appeal with the Resident Associate Judge of Kent County whose duty it shall be to appoint five disinterested freeholders of Kent County to view the property and assess the damages sustained by said party. The Resident Associate Judge of Kent County shall make such rules and orders as he may deem proper in carrying this provision into effect and shall assess the costs thereof as he shall deem proper. Where real estate is involved a copy of the final award and the approval thereof by the Resident Associate Judge of Kent County shall be recorded in the office of the Recorder of Deeds for Kent County. Upon the making of such award the Council of the Town of Magnolia shall by Resolution determine upon the acceptance thereof, and if the award be accepted shall pay to the party to whom the award is made the full sum thereof within sixty days of such award. Otherwise the project shall be abandoned.

Section 20. The Council shall have power to adopt ordinances relating to the health of the population of the Town, or to prevent the introduction or spread of infectious or contagious diseases or nuisances affecting the Town. The power to adopt such ordinances shall extend to the area outside the Town limits and within one mile of said limits.

Section 21. The Council shall have the power to adopt all measures requisite or appropriate for protection against fire, and to appropriate money for the purpose of fire equipment, whether owned by the Town or by a volunteer fire company.

Section 22. For protection against fire, the Council may adopt ordinances to zone or district the Town and to make particular provisions for particular zones or districts with regard to buildings and building material; to prohibit the use of building materials that may be deemed to create a fire hazard, and this power shall embrace new buildings or additions to or alterations of existing structures of every kind; to condemn buildings or structures, or portions thereof, that constitute a fire menace, and to require or cause the same to be torn down, removed, or so altered as to eliminate the menace of fire; to prescribe the height and thickness of walls of any buildings and the kind and grade of materials used in the construction thereof.

Section 23. The Council may adopt zoning ordinances limiting and specifying districts and regulating therein buildings and structures according to their construction and according to the nature and extent of the business to be carried on therein.

Section 24. The Council may create a Town Zoning Commission for the development and beautification of the Town, and may prescribe its powers and duties.

Section 25. The Council may provide for the issuance of building permits and may forbid the construction of any new buildings, or the addition to, or alteration; or repair of any existing buildings unless a building permit has been obtained therefor.

Section 26. Should any person, firm or corporation hereafter desire to erect any building or buildings within the corporate limits of said Town for the purpose of conducting therein the business of canning fruits, vegetables, meats, oysters, etc., or for the manufacture or manipulation of phosphates, fertilizers or manures of any kind, he or they before erecting such building or buildings, or engaging in such business, shall make an application in writing for permission therefor to said Council. And should said Council determine that such buildings will not endanger the other property or be offensive to the citizens thereof, the Council shall have authority to grant a permit to erect such buildings and conduct such business.

Section 27. The Council shall have full power to regulate the placing or replacing of poles or other structures on, in, under, and through the streets, alleys and highways within the town limits so that such poles or other structures will not interfere with the safety and convenience of people traveling on said streets, alleys and highways.

Section 28. The Council shall have power to enact ordinances defining nuisances and providing for the removal or abatement thereof, and prescribing the fines, penalties and forfeitures for causing or continuing the same.

Section 29. All ordinances and resolutions heretofore adopted or in force in the Town of Magnolia are continued in force and effect as ordinances and resolutions until repealed, altered or amended under the provisions of the charter, and the acts of the Commissioners of the Town of Magnolia and of the officials of said Town heretofore lawfully done or performed under any prior charter of said Town of Magnolia by whatever name designated, or under any ordinance of said Town, or of any law of this State, prior to the approval of this Act, are hereby ratified and confirmed.

Section 30. All taxes, penalties, fines, forfeitures, assessments and debts due the Town of Magnolia at the time of the approval of this charter shall be deemed to be due the said Town of Magnolia and the same shall remain unimpaired until paid.

Section 31. This Act shall become effective immediately upon the approval hereof.

Approved May 17, 1960.