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Original Author: Hemsley, Sid
Date of Material: 06/14/1995

Intergovernmental agreements

Contract Law

Reviewed Date: 07/25/2021
MTAS was asked whether the board of mayor and aldermen can compel the mayor to sign a certain "contract."

Your question is, can the board of mayor and aldermen compel you to sign a certain "contract"?

Before I answer that question, let me say that I am not sure that the document your letter of November 3 speaks of is a contract. Your letter says that the County Executive presented a "contract which was nothing more than a preliminary draft to be considered by our board for a possible joint venture with the Town, the City, and the County." Here I am not sure what the board did relative to the "preliminary draft." If it simply approved the concept and/or further study of the joint venture, there may be no contract for you to sign.

However, if the document in question was a contract, or will lead to a contract, the answer to your question is probably yes. Your duty under the City Charter to sign contracts is probably ministerial, therefore mandatory. However, your signature on contracts does not indicate your approval of them.

10 McQuillen, Municipal Corporations, section 29.23 says:

The contracts of municipal corporations, or certain types or classes of contract, commonly are required to be signed as provided by the laws, and if the statutes, charter provisions, or ordinances require the contract to be signed by a particular officer or officers it is invalid unless so signed.

That general proposition appears to reflect the law in Tennessee. Generally, charter provisions (if they are otherwise constitutional and legal) are mandatory and must be obeyed by the city and its agents. [Marshall v. Nashville, 109 Tenn. 495, 71 S.W. 815 (1902); State ex rel. Lewis v. Bowman, 814 S.W.2d 369 (Tenn. Ct. App. 1987)]. In addition, in Kries & Co. v. City of Knoxville, 145 Tenn. 298 (1921) it was said of the provisions in Knoxville's charter governing the power of that city to enter into contracts for additional or extra work, that

We think there can be no doubt these statutory elements are essential to the making of a lawful contract for extra work, and that lacking in them, the contract is void; and that in the face of the inhibitory terms of the charter provisions no actions can be maintained in any form to recover from the city the value of such work....If those placed in charge of the affairs of a city could wholly disregard the provisions of the city's charter and make contracts in defiance of its provisions it would, in many cases, lead to the financial ruin of the city. Such restrictions in a city's charter are sane, safe and wholesome. They have the effect of protecting the city's interest, and tend to prevent extravagant and unwarranted expenditures of the city's funds, and they cannot be disregarded. [at 303-304]

The provisions of the charter in question required contracts for additional or extra work be in writing, signed by the contractor, and approved by the board.

The City Charter provides that:

... all bonds, notes or evidence of indebtedness of the corporation and all contract to which said corporation is a party, shall have name of the town signed by the Mayor and attested by the Recorder; provided, that no such bond, notes, contract, etc. shall be signed without the approval of a majority of the Board of Mayor and Aldermen.

Three things about Section 20 are noteworthy. First, it provides that contracts, etc. "shall" carry the name of the town signed by the mayor. Second, nothing in it or any other provision of the charter indicates the mayor has the authority to approve or disapprove contracts, or that his signature reflects such approval or disapproval. In that regard, note that technically the mayor does not sign his name to the contract; rather, the contract carries "the name of the town signed by the mayor. Section 19 of the Municipal Charter is similar with respect to the conveyance of municipal property; the mayor signs such conveyances, but nothing in that or any other provision of the charter indicates the mayor's signature indicates his approval of the conveyance. Third, the signature provisions in it does not appear to operate as a check on the potential for the financial ruin of the city in the same manner as the provision at issue in Kries & Co. However, it does permit the mayor to call to the board's attention any problem with the contract or conveyance before he signs it.

In Cooper's Cafe v. City of Memphis, 18 TAM 12-9, filed March 3, 1993, the Memphis City Council passed a resolution to establish a $305,000 economic development and which reapproved Joe Cooper's Cafe's application for a $220,000 commercial loan. The mayor refused to sign the resolution. The plaintiff cafe asked the chancery court for a writ of mandamus requiring the mayor to sign the resolution. The Tennessee Court of Appeals, Western Section, upheld the chancery court in refusal to grant it. The plaintiff cafe cited a provision of the Memphis City Charter that provided, "The mayor shall sign all contracts of the City of Memphis or to which the City of Memphis is a party; provided, that if the mayor refuses to sign any such contract ... , the same shall become effective without his signature by the signature of any three of the other commissioners." The Court observed that that section of the charter had been repealed, but had it been in effect, continued the Court, a writ of mandamus would not be appropriate to require the mayor to sign a contract because his right to contract under that section is discretionary and if three of the commissioners had signed a contract to loan the plaintiffs money, then a writ of mandamus would be unnecessary. Finally, Section 14, which repealed Section 60, certainly indicates that the mayor's right to contract under the facts of this case is discretionary.

In other words, if the mayor has a discretionary rather than a mandatory duty to sign a contract, he does not have to sign it and a court will not issue a writ of mandamus to make him sign it. However, in Joe Cooper's Cafe, the mayor clearly had a right to refuse to sign the contract because three members of the board could override his refusal.. Section 20 of the the City Charter provides only that the mayor "shall" sign contracts; it contains no language indicating that his signature is discretionary.

Again, because your signature on contracts appears to be ministerial, it does not indicate your approval of the contract. However, if you do not want to sign the contract in question, the board or the beneficiary of the contract would have to decide whether to challenge your refusal to sign, either by asking a court for a writ of mandamus requiring you to sign it, or risk proceeding with the contract without your signature.


Sidney D. Hemsley
Senior Law Consultant