|Legal Opinion: |
Text of Document: November 6, 2008
Dear City Administrator:
You have the following question communicated to me through your management consultant: Does the mayor have the right to sign a quit claim deed to a utility easement without the approval of the city council? However, probably a more important question is: Who does have the authority to accept and quit utility easements?
It is said in 25 Am.Jur.2d ' 318 Easements and Licenses, that:
The release of an easement requires the intention to release it. An easement owner may extinguish an easement through an express written release to the owner of the servient estate. A deed may operate as release of an easement, as where a quitclaim deed transfers to the grantee whatever interest the owner of an easement ma have in the property quit-claimed.
It goes without saying, the intention to release an easement must reflect the intention of someone who has the authority to release it.
It seems clear enough that the mayor has no authority to accept or quit any kind of easement, unless the city council has designated him as the person to sign such instruments, after the particular instrument in question has obtained the approval of the city council. Indeed, the law governing who has the right to quit or close easements may vary according to the kind of easement at issue. For example street easements can be quit or closed only by ordinance.
In Tennessee, a mayor is a part of the legislative or administrative bodies of the city only to the extent expressly provided in the charter or statute. [Weil v. Roth & Co. v. Town of Newbern, 148 S.W.2d 680 (1912); City of Nashville v. Fisher, 1 Tenn. Cas. 345 (1874); Boyer Fire Apparatus Co. v. Town of Bruceton, 66 S.W.2d 210, 214 (1932); Lionel Hudson,
Mayor, Hollow Rock v. Town of Hollow Rock, 15 TAM 25-18.] Speaking of the Tennessee mayor ' s legislative and administrative powers, Reeder v. Trotter, 142 Tenn. 37 (1919) and Sam Anderson, Mayor and Ray Tardy, Alderman of the Town of Gainesboro v. Town of Gainesboro, (unreported), Tenn. Ct. App., MS, Sept. 26, 1988, declare that a mayor is not a member of the legislative body of the city, except to the extent provided in the city charter or other statute. In Reeder, the Court, citing Dillard on Municipal Corporations, Vol. 2, section 513, said:
The question of whether the mayor of a city shall be regarded as a member of the council is one of legislative intent. It is within the power of the legislature to confer upon him the functions of a member of the council in every respect, and if the legislation on that subject calls for that construction he will be so regarded. But in American Jurisprudence the mayor is not necessarily a constituent part of the legislative power of the municipality. His functions are intended to be, and usually are, of an executive or administrative character, and whatever power he may at any time exercise in the legislative functions of a municipal government is never to be implied, but must find its authority in some positive statute. [Emphasis is mine.] In this view, in the absence of a statute necessarily implying that he has the same standing in the council, as another other member, and particularly when his powers are expressly stated to be to preside at meetings and to give a casting vote in case of a tie, he is only a member of the council sub moto, and to the extent of the powers specially committed to him. [Emphasis is mine.] [At 42]
Citing a New Hampshire Supreme Court case that spoke of the role of the mayor as follows, the Court continued:
The mayor of a city is not an alderman or councilman of the city in a general or proper sense of those terms...He is not a member of either branch [legislative or administrative] of the city council unless expressly made by such law;...and when this is the case, it is to the extent of such powers as are specially committed to him, and no further that he is a part of the city council. He is not one of its own members in the sense of which an alderman is; ...nor has it been understood that he is to be counted in determining the presence of a quorum... [Emphasis is mine.] Applying the principles of these authorities (and none have been found to the contrary) to the statutory provisions relating to the mayor and aldermen cited in behalf of the defendants, the result is indubitably to establish the proposition that while the mayor is a constituent part of the...board for some special purposes, he sits and acts in the board not in the capacity of an alderman, but in the capacity of an ex officio presiding officer, and exercises those powers only which have been specially committed to him as the chief executive officer of the city. [At 43]
From both an administrative and legislative standpoint, here is what the City Charter, ' 9 says of the mayor ' s powers:
It shall be the duty of the mayor to preside at all meetings of the board of mayor and aldermen, to see that all the ordinance and bylaws of the city are duly observed and enforced, to call special meetings of the board of mayor and aldermen whenever he may deem it expedient , to make such suggestions and give such instructions with reference to the action of such board as in his judgement will be most conducive to the interest of the city, to employ counsel on behalf of the city in any case in which the city may be interested, when, in his judgement, the same may be necessary, and to perform such other duties as may be incumbent and binding upon him by the bylaws and ordinance of such city.
In short, the City Government is what students of government commonly call the "weak mayor form of government," and the mayor is a "weak mayor." He has no administrative powers beyond those found in the charter, except those delegated to him by the board of mayor and aldermen pursuant to the last clause of ' 6 of the charter.
Unfortunately, the copy of the municipal Code that MTAS has is old; for that reason, I am reluctant to say with any confidence what administrative duties the board of mayor and aldermen may have delegated to the mayor. With respect to the copy of the code MTAS has, Article III, ' 2-53 gives the mayor the power of general supervision of the affairs of the town, and ' 2-54 gives him the authority to "execute all contracts authorized by the board of mayor and aldermen." If we assumed that the latter power authorizes the mayor to sign deeds, it is clear that his authority there is triggered only if the board of mayor and aldermen has authorized the same. It would be a rare power granted to the mayor of any city to sign away the right of property owned by the city or any of its departments, unless the governing body of the city had previously authorized him to take such action.
The facts I was given about the utility easement in question indicates that the city may not need it. The easement was apparently granted to the utility board by a Mr. X to allow a church to cross his property to tie onto the sewer system, but the church moved. But the question of whether the city still needs the easement may be intercepted by the question of whether the easement even survived the move of the church. The answer to that question probably depends upon the language of the grant of the easement. I have not seen that grant; for that reason, I cannot speak to that issue. If it is assumed that the grant of the easement survived the move of the church, the mayor ' s signature on the quit claim deed would not operate to quit the city ' s claim to the easement. If there is a dispute about that, the city may be required to vindicate its easement in court. If the city ' s claim to the easement is still good, but the city wants to quit the easement, it can probably ratify the action of the mayor in signing the quit claim deed.
The question of whether the board of mayor and aldermen even has the authority to acquire and quit utility easements is a more fundamental question. Under ' 18 of the City Charter, there is established a Utilities Board. One of the powers that utility board has in ' 18 is:
The _____ Utilities Board shall have complete charge and control of the waterworks plant and system and electric distribution system, and all other public Utilities including the sewerage system, as may now be owed or hereafter acquired by the City of _______, Tennessee, and to that end may employ a superintendent and other employees, and fix rates, and enter into contracts and generally operate and administer such public utilities before mentioned, completely free from the control or supervision of the board of mayor and aldermen of the City of ______, Tennessee, provided only that in the operation of such utilities and the fixing of rates, the _____ Utilities Board shall observe covenants and agreements entered into or made by the board of mayor and aldermen under the provision hereof at the time of the authorization of bonds. The ______ Utilities Board shall possess the powers, rights and privileges and perform the same functions as the present "Board of Public Utilities."
The same provision continues by giving the Utilities Board the same powers, etc., as the "Board of Public Utilities" had under Private Act 1939, Chapter 497. That Act applied then to the city ' s electrical system, and ' 10, provided that "The Board of Public Utilities shall have complete charge and control of the operation of the electric system... and generally operate and administer such system completely free from the control or supervision of the Board of mayor and Aldermen..."
That power of the Utilities Board seems to me broad enough to apply to the acquisition and quitting of utility easements without the approval of the Board of Mayor and Aldermen. A utility district attempted to sell all its property to a private utility corporation in United Cities Gas Company v. Wigington, 815 S.W.2d 506 (Tenn. 1991). The Court rejected the utility district ' s argument that it could make such a sale under the utility district ' s broad powers in the Utility District Law of 1937 to buy and sell property, make contracts, incur debts, revise rates and charges and pledge all or part of its revenues, reasoning that those powers:
... are general corporate powers necessary for the transaction of the district ' s business. The exercise of those powers is, however, limited by the heading of ' 7-82-304- "Powers in carrying out purposes." (Emphasis added [by the court]) Those powers granted under that section can be exercised only in furtherance of the purposes for which the district was created which, in this case was the distribution of natural gas.... [At 508]
Presumably, under those powers, the utility district could have acquired and quit utility easements without the approval of the county. However, under the Utility District Law of 1937, utility districts are themselves "municipalities," while under Keeble v. Loudon Utilities, 370 S.W.2d 531 (1963), city utility systems appear to be departments of the city. That case applied to utilities created under the Municipal Electric Plant Law of 1935, but I can think of no reason it would not apply to the city's Utilities Board. Still, where the city's charter provides broad autonomy to one of the city ' s departments, it seems logical that such autonomy would apply to the acquisition and quitting of utility easements. Municipal school systems are also city departments, but there is no question that they are to a large extent independent of the control of the city ' s governing body for many operational purposes.
But due to the short time I 've looked at this question, it will be necessary for me to do more research on the question of who has the authority to acquire and quit utility leases. If it is assumed that the city ' s governing body has that authority, I can say this with confidence: Unless
the city ' s governing body has delegated to the mayor the power to sign quit claim deeds (a power which I do not find either in the city ' s charter or in the old version of the city ' s code which MTAS has, the mayor ' s signature on the quit claim deed did not operate to quit claim the city ' s interest in the easement.
Sidney D. Hemsley
Senior Law Consultant