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the heirs of the said J. M. Cockrum in his es- ( creating such tax and the remedy for the coltate, but denied that they or said estate were lection thereof. liable to the state of Tennessee for a collater- [3] It is insisted by complainants that, unal inheritance tax, they having become the der the facts, the estate of J. M. Cockrum is owners of said estate by purchase, and not by not liable for a collateral inheritance tax in either will or inheritance, or by any deed, the hands of complainants. grant, bargain, gift, or sale from the owner We are of the opinion that this contention of said estate made in contemplation of death. is not well grounded. As before stated, J. M.

Upon the hearing the chancellor sustained Cockrum died on June 6, 1917, and the assignthe petition of the county court clerk, adjudg- ments or transfers from his nephews and ing that it was rightfully and properly filed in niece to the complainants Tate and Greenlee said cause, and gave him a decree for the were executed in April and May, 1917, and sum of $685.56, which amount was 5 per cent. said assignment from Tate and Greenlee to of the clear value of said estate, together their cocomplainant, Frank Park, Jr., was with $62.50 attorney's fees, and ordered said made in August, 1917, which was after the sums to be paid to said clerk out of the fund death of the said J. M. Cockrum. It follows, then in court. From this decree complainants therefore, that, at the time of the execution have appealed to this court.

of said assignments by the nephews and [1] The first contention made by the as- niece of J. M. Cockrum to the complainants signments of error is that the petition of the Tate and Greenlee, who conveyed to the comcounty court clerk was wrongfully filed in plainant Park, the nephews and niece had no said suit pending in the chancery court, be interest in said estate. The only interest cause, under the act of 1893, the county court which they had in said estate was the possialone is vested with jurisdiction of suits for bility that they might outlive their uncle. the collection of collateral inheritance taxes. In other words, they had nothing but bare

We are of the opinion that this contention expectancies in said estate. The estate did is not well grounded for two reasons:

not become vested in said nephews and niece [2] First. It is provided by section 22 of until the death of J. M. Cockrum, and then said act that, in all cases when an estate is subject to his debts, and any taxes which had being wound up or administered in the chan- been levied or which might be leviable under cery court, it shall be the duty of the court to and by virtue of the statute laws of the state. see that the collateral inheritance tax is paid at the time complainants took their assignto the clerk of the county court, if such estate ments, J. M. Cockrum was alive. The estate be liable for such tax, and to see that such tas was his. He had the right to consume it for is paid or retained before a legacy or share his support. He would have had the right, if of the estate is paid or turned over to the he had regained his mental powers, to dispose owner. The bill in the cause in which said of it by will or in any other manner he saw petition was filed by the county court clerk proper. The assignments by his nephews and asked that the estate of the said J. M. Cock- niece did not transmit any vested interest in rum be administered and settled in the chan- said estate to the complainants. In law said cery court in which it was filed, and that assignments were only agreements or cove complainants be given a decree against the nants to convey said estate to the complainguardian for the amount of said estate.

ants Tate and Greenlee when the same should Second. The complainants did not raise become vested in said nephews and niece, any question of jurisdiction in the court be which, as before stated, was upon the death low. They do not question the jurisdiction of their uncle. of the chancery court in their answer filed to

[4] Such an agreement or covenant to consaid petition. The only defense made in their vey by an heir expectant and sui juris, if fairanswer is that the estate of J. M. Cockrum, ly made and based on a valuable considerain the hands of his guardian, after the assign- tion, will be enforced as against the grantor ments by his nephews and niece transferring and his privies, whenever the property comes said estate to them, is not liable for the tax into his possession, but not until then. Fitzsought to be collected.

gerald v. Vestal, 4 Sneed, 258; Steele v. FriIn Shelton v. Campbell, 109 Tenn. 690, 72 erson, 85 Tenn. 430, 3 S. W. 649; Read v. S. W. 112, it was held that the suit of the Mosby, 87 Tenn. 759, 11 S. W. 940, 5 L. R. A. county court clerk for the collection of collat- 122; Taylor v. Swafford, 122 Tenn. 303, 123 eral and inheritance taxes should be brought s. W. 350, 25 L. R. A. (N. S.) 442. in the county court, upon which court juris

In the case last cited the court, in discussdiction is conferred by statute, but such suit ing this question, said: may be instituted and maintained in the

"It is an old and well-settled rule of the comchancery court, where there is no demurrer or

mon law that, in order to constitute a valid plea to the jurisdiction, but that such suit contract of sale, there must be a grantor and must be conducted and treated as though it grantee, and a thing in existence at the time of had been brought in the county court, and in the contract; hence, under this rule, a mere posaccordance with the provisions of the act sibility could not be conveyed. McCrackin v.

Wright, 14 Johns. (N. Y.) 193; Davis v. Hay-, cretion, while legislative acts involve the exer
den, 9 Mass. 514; Bayler v. Commonwealth, 40 cise of discretion and judgment.
Pa. 37, 80 Am. Dec. 551; 2 Leading Cases in (Ed. Note.-For other definitions, see Words
Equity (White & Tudor's Ed.) pt. 1, p. 1605. and Phrases, First and Second Series, Legisla-

"It is true that recitals and covenants might tive Act; Ministerial Act.) be of such a character as to conclude parties and privies and estop them from denying the 3. MUNICIPAL CORPORATIONS Om 62—DELEGAfull operation of the instrument, and so in many

TION OF POWERSLEGISLATIVE POWERS. cases, even in courts of law, such recitals and Where Acts 1903, c. 103, under which a covenants were held sufficient upon the principle city was incorporated, vested in the board of of estoppel to pass to the grantee an interest in mayor and aldermen all power to contract, an the property conveyed, subsequently acquired arbitration agreement made by the mayor with by the grantor.

one whose property the city desired to condemn “But, independent of the rule of estoppel, both for a new city hall building was void, for, in English and American courts in equity, where though the board of mayor and aldermen by it is found that the contract of an expectant has resolution directed the mayor to enter into a been fairly made and upon a valuable considera- written agreement of arbitration, and select tion, it will be enforced, as against the grantor arbitrators, held, that such acts involved discreand his privies, whenever the property covered tion, and the power to perform the same could by it comes into possession. This is done, how- not be delegated. ever, by these courts, not upon the ground that the grant is one of a present interest, but rather Appeal from Chancery Court, Hamblen upon that stated by Gibson, C. J., in Chew v. County; Hugh G. Kyle, Chancellor. Barnet, 11 Serg. & R. (Pa.) 389, to wit: That a conveyance, before the grantor has acquired

Bill by A. W. Lotspeich against the Mayor the title, operates as an agreement to convey, and Aldermen of the Town of Morristown. which may be enforced in chancery between the From a decree dismissing his bill, complainparties and against purchasers with notice.' ant appeals. Affirmed.

“This seems to be the theory upon which these courts have acted with regard to such con

J. A. Carriger, of Morristown, for A. W. tracts."


Rufus M. Hickey, of Morristown, for MayApplying the rule announced in the above or and Aldermen of Morristown. cases to the one at bar, it follows that when J. M. Cockrum died his estate passed to and HALL, J. The bill in this cause was filed became vested in his nephews and niece, sub- by the complainant, A. W. Lotspeich, against ject to their agreements or covenants to con- the mayor and aldermen of the town of Morvey the same to the complainants Tate and ristown, seeking to enforce an award of arbiGreenlee. It follows, therefore, that upon the tration made pursuant to an alleged arbitravesting of said estate in said nephews and tion agreement entered into in writing by W. niece it became liable for the collateral in B. Whittaker, mayor of the defendant, on heritance tax provided by statute. The es- | August 3, 1916. tate could only pass to complainants under The defendant, mayor and aldermen of the their assignments by virtue of the inheritance town of Morristown, answered the bill, setof the nephews and niece, who were their as- ting up in its answer the defense, by plea of signors, from their uncle.

non est factum, that the mayor was without There is no error in the decree of the chan-authority to bind the city under said agreecellor, and it is affirmed, with costs.

ment, it appearing that said arbitration agreement executed by him was never reported to the defendant, and the same was never ratified by it.

This defense was sustained by the chan

cellor, and complainant's bill was dismissed. LOTSPEICH v. MAYOR AND ALDERMEN From this decree complainant has appealed OF TOWN OF MORRISTOWN. to this court, and has assigned the action of

the chancellor in dismissing his bill for error. (Supreme Court of Tennessee. Nov. 30, 1918.) It appears from the record that the defend1. MUNICIPAL CORPORATIONS Om62–POWERS ant, mayor and aldermen of the town of Mor--DELEGATION.

ristown, having determined to build a city hall The powers possessed by municipal officers for the city of Morristown, and being desirous must be viewed as public trusts, and legislative of securing additional ground upon which to powers of the board of mayor and aldermen erect said structure, by resolution passed on cannot be delegated to the mayor, although July 1, 1916, authorized and directed its city mere ministerial powers may be so delegated. attorney to file condemnation proceedings 2. MUNICIPAL CORPORATIONS C57_"MINIS. against the complainant in the circuit court of TERIAL ACT”-“LEGISLATIVE ACT."

Hamblen county, Tenn., to have condemned A purely ministerial function of a municipal for said purpose a lot or parcel of land officer is one as to which nothing is left to dis- adjoining a lot already owned by the city

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

situated at the corner of First North and property taken and the incidental damages Henry streets in the city of Morristown. The to the portion not taken, the arbitrators lot or parcel of land sought to be condemned should proceed according to the law of emiby said proceedings in the circuit court lies nent domain. He further agreed that there on the eastern boundary of the lot then own- should be no appeal from the award of the ed by the city known as the "city hall” lot, arbitrators, and that the award should be and fronts and is bounded on the south by final and could be specifically enforced. He First North street, commencing at the south- further agreed that the defendant, mayor and east corner of the city hall lot, and running aldermen of the town of Morristown, should parallel with First North street 20 feet east; pay the taxes assessed against said property thence northwardly a direct line 87 feet; for the year 1916, together with paving asthence eastwardly a direct line 20 feet; and sessments outstanding, which the proof shows thence southwardly a direct line 87 feet to to be approximately $50. He further agreed the beginning.

that the mayor and aldermen of the town of This suit was pending in the circuit court Morristown should construct a wall out of of Hamblen county, and had not been dispos- stone, cement, or other suitable material on ed of, when, on July 7, 1916, the defendant, the line between the property of the city and in regular session, passed the following reso- the property of the complainant, and that lution:

said wall should be built entirely on the prop"On motion of Alderman Jas. E. Burke, and erty of the defendant. He further agreed seconded by Alderman S. J. Felknor and by that the defendant should dump, without exthe affirmative vote of the board, the mayor, W. pense to the complainant, all surplus dirt B. Whittaker, was directed to enter into a that it might have by reason of any excavawritten agreement of arbitration on behalf of tion incident to the building of its city hall the mayor and aldermen of the town of Morris

and preparing alleys, etc., on the remaining town, with A. W. Lotspeich, to select a jury of view, etc., to determine the value of a certain

property of the complainant, or on such parts lot lying and situate between the present city

thereof as he might designate or indicate. hall lot on First North street and the new brick He also agreed that the complainant and his building of the said A. W. Lotspeich, to ac- vendees should have free use of the alley to quire same for city hall purposes, and to take be opened up by the defendant on the north such steps as are necessary to effect a speedy or east of said city hall to be erected by it. settlement with said Lotspeich for the acquire- On August 11, 1916, the arbitrators so sement of said lot."

lected, after being duly sworn, proceeded to Thereafter, on August 3, 1916, the mayor act under said arbitration agreement, and of the defendant, W. B. Whittaker, pursuant fixed the value of the lot mentioned and deto said resolution, entered into the written scribed in said arbitration agreement at the arbitration agreement with the complainant sum of $1,710, which sum was awarded to the hereinbefore referred to. This agreement is complainant for said lot. They awarded to lengthy, and we will not undertake to set it the complainant, as incidental damages, the out in hæc verba in this opinion, but only sum of $1,400, as follows: $450 to the 6 feet such of its stipulations will be referred to as as described in the agreement to arbitrate may be material to the determination of the lying between the new brick building of said question to be hereinafter considered, which, Lotspeich and the said 19 feet sought to be we think, is determinative of the cause. appropriated, and $950 resulting to said Lots

The resolution of July 7th expressly de peich on account of not being able to use to scribed the lot or parcel of land which was to advantage the western wall of his said brick be made the subject of the arbitration agree building. The total amount awarded to the ment to be entered into by the mayor with the complainant as the value of the land taken complainant as a strip of land lying between and incidental damages to the remainder was the present city hall lot on First North street the sum of $3,110. and the new brick building of the complain. The arbitration agreement and the award ant, which lot, the proof shows, has a front of the arbitrators based thereon were never age of 25 feet on First North street, while reported to the defendant, and were never the mayor assumed to agree with complainant ratified by it. to arbitrate with respect to a strip of land The complainant, after said arbitration was fronting 19 feet on First North street and had and the arbitrators had made report of running back 85 feet, the 19 feet being only their findings in writing, tendered to the de a portion of the 25-foot lot.

fendant a deed for said property duly exécutThe mayor, acting under said resolution, se- ed in accordance with said award, which it lected an arbitrator for and on behalf of the refused to accept. Whereupon the present defendant, to wit, John M. Williams. The bill was filed, and the deed tendered with the complainant selected L. W. Brown as the ar- bill, and upon final hearing the bill was disbitrator on his behalf, and the mayor and missed by the chancellor, as before stated. complainant mutually agreed on James Rob- The chancellor held that the defendant was inson as the third arbitrator. The mayor not bound by the arbitration agreement enfurther agreed that, in fixing the value of the tered into with the complainant by its mayor


on August 3, 1916, and was not bound by the Mr. McQuillin, in distinguishing between award of the arbitrators selected under said discretionary and ministerial powers, at secagreement, because the resolution previously tion 384, uses the following language: passed by the defendant on July 7th author. "There is a clear distinction to be observed izing its mayor to enter into said arbitration between legislative and ministerial powers. The agreement was an unlawful delegation of its former cannot be delegated: the latter may. powers to the mayor, and that the mayor's Legislative power implies judgment and discreaction in the premises was not binding upon tion on the part of those who confer it. the defendant. It is insisted by the com

"Duties required to be performed by ordinance plainant that in this holding the chancellor

are legislative and cannot be delegated. So the

fixing of the time when and within which public committed error, for the reason that the pow

work is to be done is a legislative function, and ers delegated to the mayor by said resolution

cannot be delegated to the city engineer." were purely administrative, and not legisla

Again, at section 385, Mr. McQuillin says: [1] The following rule is announced by Mr. McQuillin in his valuable work on Municipal

"So, where the charter imposes the duty upon

" the council to determine the manner in which Corporations (volume 1, $ 382, et seq.):

an improvement, as a street, shall be made, "The legal conception early obtained that the such duty cannot be delegated by ordinance to powers possessed by public and municipal offi- a city officer of the street committee of the councers 'must be viewed as public trusts, not con- cil. So the power conferred by charter upon the ferred upon individual members for their own council 'to erect lamps, and to provide for lightemolument, but for the benefit of the community ing the city,' and 'to create, alter, and extend over which they preside. Therefore the prin- lamp districts,' cannot be delegated to a comciple is fundamental and of universal applica- mittee of the council, so that the determination tion that public powers conferred upon a mu of the committee will be final, either as to erectnicipal corporation and its officers and agents ing new lamps or discontinuing those already cannot be surrendered or delegated to others. established." * * * So the power to contract for the erection of public buildings cannot be surrendered | Again, speaking of the distinction between to private individuals. * * * In every case discretionary and ministerial powers, this where the law imposes a personal duty upon an author, at section 387, uses the following lanofficer in relation to a matter of public inter- guage: est, he cannot delegate it to others, as by submitting it to arbitration. * * * Such powers

"The rule forbidding the delegation of power, belong emphatically to that class of objects stated and illustrated in prior sections, does not which demand the application of the maxim, apply to the performance of purely ministerial 'Salus populi suprema est lex;' and they are duties. Such duties may be delegated. to be attained and provided for such appropri- ' "The law has always recognized and emphaate means as the discretion of those who official- sized the distinction between instances in which ly represent and act for the municipal corpora- a discretion must be exercised by the officer or tion may devise from time to time. This dis- department or governing body in which the discretion can no more be bargained away than cretion is vested and the performance of merely the power itself."

ministerial duties by subordinates and agents. Therefore the appointment of agents to carry

out the authority of the council is entirely comAgain, at section 383, Mr. McQuillin says:

petent and does not violate the rule, 'Delegatus "So, where the mayor and aldermen must se- non potest delegare.' Thus the council may lect the sites for public markets, the architect, create committees or other bodies to investigate and plans, and commissioners are required to given matters, to procure information, to make make purchases and contracts, a resolution ap- reports and recommendations, and not exceed pointing the commissions to purchase a site and its power in the matter under consideration, build a public market is void. So, where cer- but the council alone must finally determine the tain duties are conferred upon the council and subject committed to its discretion and judgment. chief engineer of the fire department, they can- * * * So the council may authorize the mayor not be delegated by ordinance or otherwise to a to make a contract which the council alone is fire board. So the determination of the kind of authorized to make, and afterwards ratify such material with which streets shall be paved, or contract and take action, as in issuing bonds, sewers constructed, and the manner and time in in pursuance of it. In such cases the mayor which such work shall be done, conferred upon merely acts as the instrument or amanuensis of particular officers, boards, or departments, can- the council. It is through him that the contract not be delegated. So, where the law confers is made. The council by ratification finally deupon the council, in conjunction with the board termines and fulfills the duty imposed by law." of education, power to purchase a site for school purposes, such authority cannot be delegated to The rule seems to be well settled that, so the board of public works. So, where the far as the powers of a municipal corporation organic law vests the power of appointment of are legislative, they rest in the discretion and an attorney in the council, it cannot be trans- |

judgment of the municipal body intrusted ferred to the mayor by ordinance or otherwise. * * * Nor can the city relieve its officers

with them, and the general rule is that that from discharging their regular duties, as by con

body cannot delegate or refer the exercise of tracting by ordinance or otherwise with another such powers to the judgment of a committee. to perform part or all of such duties."

Dillard v. Webb, 55 Ala. 468; Bibel v. People, 207 S.W.-46

67 Ill. 172; Bills v. Goshen, 117 Ind. 221, 20 | poration of Nashville had no power to deleN. E. 115, 3 L. R. A. 261; Koeppen v. Sedalia, gate to any one or more members of the board 89 Mo. App. 648; Hengst v. Cincinnati, 9 of aldermen authority to give notice, to such Ohio Dec. 731.

| citizens as they might select, to construct It has been said that the reason for this footpavements in front of their lots, and, rule is found in the fact that members of the in the event of failure to make such pavecouncil are chosen by the people to represent ments within the time fixed by a by-law of the municipality, charged with a public trust the corporation, to have them made at the and the faithful performance of their duties; expense of the owner of the lot; that this and the public is entitled to the judgment and was a power conferred upon the corporation discretion, in all matters where such ele- which could not be delegated. ments enter into transactions on behalf of [2, 3] The defendant was incorporated in. the municipality, of each member of the body der chapter 103 of the Acts of 1903. By this upon which authority to act is conferred. Jew- act all power to contract is vested in the ell Belting Co. v. Bertha, 91 Minn. 9, 97 N. board of mayor and aldermen. There is no W. 424.

provision in the charter authorizing the may. Within the rule that the governing body or to execute contracts or to bind the municiof a municipality may not delegate its legis- pality. He is vested with no discretionary lative functions to a committee, it has been powers. The only provision in the act conheld that the power to order the construction ferring any authority on the mayor is found of sewers cannot be delegated to a sewer in section 3 thereof. This section provides committee. Nor can the power to make cer- that the mayor shall preside at all meetings ta in improvements in the sewerage system be of the board, to see that all ordinances of delegated to a committee and the city engi- the town are duly enforced, and he is vested neer. People v. McWethy, 177 Ill. 334, 52 N. with the power to call special sessions of the E. 479.

board when he may deem it expedient. It has been held that the council may not | The resolution of July 7th conferred full delegate the duty of prescribing the width of power on the mayor to enter into the arbitraa proposed sidewalk to the street committee | tion agreement on behalf of the defendant, and city engineer. McCrowell v. Bristol, 89 and “to take such steps as were necessary to Va. 652, 16 S. E. 867, 20 L. R. A. 653.

effect a speedy settlement with the complainThe power to license a particular occupa-ant for the acquirement of said lot." He, of tion within the corporate limits, it has been necessity, had to exercise judgment and disheld, cannot be delegated by the municipality cretion in selecting an arbitrator for the city; to the mayor. State v. Glavin, 67 Conn. 29, in agreeing on a third arbitrator; in reduc34 Atl. 708.

ing the frontage of the lot from 25 feet to 19 It has been held that it is beyond the power feet; in contracting for a right of way for of the city council to delegate to the mayor the complainant over the city's property; or to any agent the power to sell certain mu- in agreeing to build a wall on the city's propnicipal bonds at a price to be fixed accord-erty; in agreeing to release the complainant ing to his discretion. Blair v. Waco, 75 Fed. from the payment of taxes and paving assess800, 21 O. C. A, 517.

ments; and in agreeing that the award of It has also been held that, where the may- the arbitrators should be final, and the city or and council have the power to tax, this should not have the right to appeal there. power cannot be delegated to the mayor from. alone. Johnston v. Macon, 62 Ga. 645.

A purely ministerial function of a municiNor can a municipal corporation commit to pality is one as to which nothing is left to one of its departments the discretion to re discretion; while legislative acts involve the voke or decline to renew a billboard license. exercise of discretion and judgment. City of Curran Bill Posting & D. Co. v. Denver, 47 | Biddeford v. Yates, 104 Me. 506, 72 Atl. 335, Colo. 221, 107 Pac. 261, 27 L. R. A. (N. S.) 15 Ann. Cas. 1091. 544.

We are clearly of the opinion that the powNeither can it delegate to a committee of ers attempted to be delegated to the mayor by officials the power to take steps to prevent the the resolution of July 7th were legislative casting of litter into the streets, and to pro- rather than ministerial. It attempted to convide for the erection and cleaning of recepta- fer upon the mayor the power to contract on cles for such refuse, where it is given the behalf of the city, by which contract the city power to provide for the maintenance of clean was to be bound, when that power is vested streets. People ex rel. Healy v. Clean Street alone in its mayor and aldermen under its Co., 225 III. 470, 80 N. E. 298, 9 L. R. A. (N. charter. It vested in the mayor a wide disS.) 455, 116 Am. St. Rep. 156.

cretion in making said arbitration agreement In Whyte v. Mayor and Aldermen of Nash- and in taking such steps as were necessary ville, 2 Swan (Tenn.) 364, 365, it was held that to acquire the property from complainant. the powers conferred upon a municipal corpo- This discretion the mayor exercised in the ration must be exercised in conformity with particulars hereinbefore enumerated. the law of its creation; and hence the cor- We think the powers delegated by said res

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