February 12, 2001
In your letter of January 26, you have what I think is the following question: Is it legal for the city to require a bond to secure the demolition of a building within the historic overlay? The purpose of the bond would be to allow the town to complete demolition and restore property to a state consistent with the historic district.
I can find no authority anywhere in the state law to support such a requirement. It was held by the Tennessee Supreme Court in State v. Tutt, 135 S.W.2d 449 (1940), that:
We have a number of cases where an instrument apparently executed in an attempt to comply with a statute did not meet the requirements of the particular statute involved and was consequently held good as a common law bond. [Citations omitted].
Repeatedly in these cases it is said that such bond as we are considering, to be enforceable as common law obligations, must have been voluntarily executed. If any such bond is exacted by a public official, under color of his office, without warrant of law, it is not good in any aspect. Such is the general rule. 8 Am.Jur. 772, 11 C.J.S. Bonds, page 413, § 26; 9 C.J.S. 28.
A public official has no right to exact a bond of any person as a condition of that person’s enjoyment of a privilege unless such bond is authorized by law. As said by the Supreme Court in United States v. Tingey, 30 U.S. 115, 5 Pet. 115, 129, 8 L.Ed. 66, such conduct “would be, not to execute, but to supercede the requisitions of law.” [At 450]
Brown v. McCullough, 144 S.W.2d 1 (1940), follows Tutt. Both those cases appear to still be the law in Tennessee that control your question.
Sidney D. Hemsley
Senior Law Consultant