v. Gillespie et al. Hartford
Court of Appeals of
Decided October 22, 1935.
BARNES & SMITH for appellant.
HEAVRIN & MARTIN and GILMORE KEOWN for appellees.
OPINION OF THE COURT BY JUDGE RICHARDSON.
The determination of the issues presented herein requires a chronological statement of the statutes and the deeds involved, and a construction of them.
The city of
In July, 1871, the trustees, under the statutes in operation at that time, constituted a board to do business. They were "a body corporate, and by that name [trustees] may sue and be sued," with the right to "elect one of their body chairman of that board, with power "to purchase, take, and hold the title to not exceeding forty acres of land, in or near the town, for a public cemetery"; "to improve such ground, and appoint a keeper thereof"; "to sell small parcels of the ground to individuals for the purpose of interment"; "to receive and collect subscriptions to aid in purchasing, taking care of, and repairing such ground." 2
The General Assembly, by chapter 99, Acts 1891-92-93, p. 256, classified the cities and towns of the commonwealth. The city of
On the 27th day of July, 1871, a deed was executed and delivered by William P. Forman and Helen Forman, for the consideration of $500, evidenced by notes, "to the trustees" of the town of Hartford and their successors, in office, in trust, conveying to them as trustees, "for the use of the public as a cemetery, and for the use of such persons as the said trustees or their successors, shall sell lots or a part of the premises," a certain boundary of land, containing twelve acres and three rods with the reservation stated in the deed, which is not now here involved. On November 13, 1916, the city council of Hartford, by and through J.C. Iler, mayor, and J.A. Howard, clerk, executed and delivered a deed, conveying the same land to J.E. Bean, J.C. Iler, and C.O. Hunter, trustees of Oakwood Cemetery, "and their successors in office" for the recited consideration of $1 in cash, and the further consideration that the grantees and "their successors in offices will keep the amount of $1,000.00 and interest and hold same as a trust fund, not to be used for any purpose, but may use all the interest from the $1,000 annually, together with the proceeds of the burial lots to improve and upkeep the said cemetery."
The deed undertakes to confer upon Bean, Iler, and Hunter, as trustees, and their successors in office, the power to appoint their successors, with the restriction that a vacancy be filled by them or their successors, by the appointment of a resident of the town of
"The said trustees shall have the power to make rules governing the cemetery, the same as the city council has, and if at any time, said trustees shall think it best to incorporate the cemetery, this may be done as the law of the state requires. The duty is imposed upon the treasurer of the cemetery, on the request of the city council, to report to it the amount of money received and paid out and the balance on hand in cash or notes."
The city of
Section 3616 (Acts of 1891-92-93, c. 250, sec. 10) operated to abolish the office of trustees of the city of
With section 3637-9 of the statute in mind, it is easy to see that in so far as the deed to Bean, Iler, and Hunter, attempts perpetually to divest the city council of its statutory power and duty, respecting the control and management of the cemetery, the pricing and selling the lots therein, it is a nullity. City of Louisville v. Parsons, 150 Ky. 420, 150 S.W. 498. And in so far as it attempts to, or does, confer upon the trustees named in the deed and their successors the power of self-perpetuation, it is likewise invalid. It constitutes neither a sale of, nor an incumbrance upon, the land therein described. Trustees of Augusta v. Perkins, 3 B. Mon. 437; Giltner v. Trustees of Carrollton, 7 B. Mon. 680; Massey v. City of Bowling Green, 206 Ky. 692, 268 S.W. 348; Russell v. Bell, 224 Ky. 298, 6 S. W. (2d) 236.
The members of the city council who authorized the execution and delivery of the deed to Iler, Hunter, and Bean, and Iler, Hunter, and Bean, must be presumed to have had knowledge of the existence and purpose of section 3637-9 at the time of the execution and delivery of the deed by the former to the latter. Its language is plain, simple, and free of ambiguity. Pulaski County v. Richardson, County Treasurer, 225 Ky. 556, 9 S.W. (2d) 523; City of Newport v. McLane, 256 Ky. 803, 77 S.W. (2d) 27, 96 A.L.R. 655.
The city council, at the time it executed and delivered the deed to them, was an agent of the city, with delegated powers, and was without right to divest itself of and confer upon Iler, Bean, and Hunter the power or duty to exercise the discretion vested by the statutes in the council in the control and management of the cemetery and fixing the prices of the lots. Carter v. Krueger & Son, 175 Ky. 399, 194 S.W. 553; Conrad v. Pendleton County, 209 Ky. 526, 529, 273 S.W. 57; Clark County Fiscal Court v. Powell County Fiscal Court, 223 Ky. 10, 2 S.W. (2d) 1039. And it must be presumed that in dealing with it, Bean, Iler, and Hunter not only had knowledge of the existence of this statute, but the extent of the authority of the city council when acting thereunder. Perry County v. Engle, 116 Ky. 594, 76 S. W. 382, 25 Ky. Law Rep. 813; Floyd County v. Owego Bridge Co., 143 Ky. 693, 137 S.W. 237; Leslie County v. Keith, 227 Ky. 663, 13 S.W. (2d) 1012.
The city council, at the date of the deed to them, had the power under the statutes to appoint an administrative agent and delegate to him the power to control and manage the cemetery and to fix the price and execute deeds to lots therein, subject to its approval and regulation, but it was entirely without power to delegate to them the discretion which the statutes vest in the city council in respect to the cemetery, its control and management.
It is apparent that it is our view that, at most, the deed of November 13, 1916, conferred on Bean, Iler, and Hunter, and those who have acted and are acting thereunder, no more than a mere agency, terminable at the will of the city council. It was therefore their duty, on the demand of the city council, to surrender to it, all money, notes, and state warrants derived from their control and management of the property, and the title and possession of the land paid for out of the sale of the cemetery lots, as well as the entire control and management of the cemetery.
The judgment of the circuit court not being in harmony with our views, it is reversed, with directions to overrule the demurrer to the petition, and for proceedings consistent herewith.