v. Gillespie et al. Hartford
Court of Appeals of
Decided October 22, 1935.
Circuit Court. Ohio
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
Hartford, , was
incorporated by an act of the General Assembly, approved February 3, 1808. 3
Litt. Laws of Ohio
County, Ky. ,
p. 442. Kentucky
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
Stanton's Revised Statutes of , 1867 Ed. p. 422. Kentucky
The General Assembly, by chapter 99, Acts 1891-92-93, p. 256, classified the cities and towns of the commonwealth. The city of
was assigned to the fifth class by chapter 116, Acts of 1904, p. 280 (Ky.
Stats. 1930, sec. 2740). Each city of the fifth class was thereby declared to
be (section 3615, Ky. Stats.) a corporation by the name it then had, with
perpetual succession, and with power to sue and be sued, to "purchase,
lease, receive, hold and enjoy real and personal property, and control and
dispose of the same for the common benefit." The government of the city of
also, thereby (section 3616, Ky. Stats.) vested in a mayor and a city council
to consist of six members. And it was further provided (section 3637-9)
"that where the city owns a cemetery it shall be under the control and
management of the city council; they shall fix the price at which the lots
shall be sold, and may execute deeds therefor; a receipt from the treasurer
shall be complete evidence of title." Hartford
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
John E. Bean was therein designated commissioner to make deeds to burial lots,
with the power in Bean, Iler and Hunter, as trustees, to appoint another
commissioner in lieu of Bean. And it contains this provision: Hartford
"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
Hartford brought this action against W.H. Gillespie, T.H.
Black and W.J. Bean, trustees of , C.O. Hunter,
J.C. Iler, and the executor of John W. Bean. The petition alleges that upon the
execution and delivery of the deed by the Formans, the city of Hartford, by and
through its board of trustees, immediately took possession of the land
described in the deed, as a cemetery, and continuously exercised all authority
over it, until the execution and delivery of the deed, by which the city
undertook on November 13, 1916, to confer upon J.E. Bean, J.C. Iler, and C.O.
Hunter, trustees of the Oakwood Cemetery, all of the city's authority over the
cemetery, and the control of the $1,000 referred to in the city's deed to Bean,
Iler, and Hunter; thereafter J.C. Iler ceased to be a resident of the city of
Hartford, and Bean and Hunter elected W.H. Gillespie to fill the vacancy in the
trusteeship occurring from Iler's removal from the city. Later, C.O. Hunter
removed from the city, when Bean and Gillespie elected T.H. Black as Hunter's
successor. And in 1932, upon the death of Bean, Gillespie and Black elected
W.J. Bean to fill the vacancy resulting from the death of J.E. Bean. Gillespie,
Black, and W. J. Bean are now claiming to be the successors in office of J.E.
Bean, J.C. Iler, and C.O. Hunter. It is charged in the petition they are in the
possession of the cemetery, and there are now in their hands, $210.69, cash;
$400, evidenced by Stalsworth's note, and state warrants of the value of
$1,673.62, derived from the sale of lots, and that, from the proceeds of the
sale of burial lots, the trustees, acting under the aforementioned deed, had
purchased of R.D. Newton a lot adjoining that embraced in the Forman deed, to
be used, and was being used, as a part of the cemetery. Hunter,
Black, W.J. Bean, J.C. Iler, and the executrix of the estate of John E. Bean,
it is alleged, are wrongfully and without right withholding from the city
council, the cemetery, the money, notes, and warrants, mentioned above; and are
fixing the price of burial lots, selling and conveying the same to the
purchasers, although requested to surrender the control and possession of the
cemetery and turn over the money, notes and warrants to the city. The city in
its petition, prays that the "ownership and rights" of the city of Hartford
and Gillespie, Black, W.J. Bean, Hunter, Iler, and the estate of John E. Bean,
to the cemetery, money, notes, and state warrants, and the land conveyed by
Newton to them as trustees, be determined and declared. A demurrer was
sustained to the petition. It was dismissed. A mere reading of the statutes in
force at the date of the Forman deed, and the Forman deed, is sufficient to
establish that the title to the land described in the Forman deed was in the
city of Hartford at the date of the deed of Bean, Iler, and Hunter. The Forman
deed, conveying the land to the trustees of the town, did not vest in them, but
in the city, the legal title. Trustees of Oakwood
v. Horter, 4 Litt. 119; Mason v. Mulholn, 6 Dana, 140. The statute, in
operation in 1871, expressly provided that the city of Falmouth may acquire title to land not
exceeding 40 acres for cemetery purposes by a conveyance to the trustees of the
town, and clearly defined the duties of the trustees in respect thereto. Hartford
Section 3616 (Acts of 1891-92-93, c. 250, sec. 10) operated to abolish the office of trustees of the city of
Section 3637-9 expressly confers exclusive control and management of the
cemetery, and imposes the duty appertaining thereto, upon the city council,
with the power and duty to "fix the price at which the lots shall be
sold" and to execute deeds therefor. Hartford
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, 150 420, 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. Ky.
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.
County v. Richardson,
225 Ky. 556, 9 S.W. (2d) 523; City of Newport v. McLane, 256 803, 77 S.W. (2d) 27, 96 A.L.R. 655. Ky.
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.