Memorandum
From: Sid Hemsley, Legal Consultant
Date: 6/28/12
Re:
Replacing the Mayor
Who can become the mayor upon the resignation of the mayor?
The City Charter contains no provisions for the replacement of a mayor who resigns or otherwise
vacates his office. Section 6 of that charter, provides that “In case of absence, sickness, or other
disability of the Mayor, the Recorder shall be, for the time being, Mayor pro tempore, with all the
powers and duties as given the Mayor.” However, as we shall see below, such a provision does not
contemplate that the recorder, or any other person, to assume the office of mayor pro tempore to fill the
vacant office of a mayor who has resigned.
Indeed, there is nothing in the charter explaining how the mayor who resigned is replaced. I can
find no provision in the city’s charter or the general election law of the state providing for his
replacement by election. It has been held that unless there is a statute that supports an election, no
election can be held. [Brewer v. Davis, 28 Tenn. 208 (1848)] However, it is the law in Tennessee that
where there is a vacancy in office, and the statutes governing the filling of the vacancy are silent for
how long the replacement holds office, he holds office for the remainder of the term of office. [State
ex rel. Gann v. Malone, 121 Tenn. 149 (1914). Also see 62 C.J.S. Municipal Corporations, § 498.]
It does seem clear that because in Tennessee all the legislative and administrative power of the
city is vested in the city’s governing body unless the charter or state law provides otherwise, the City
Council has the authority to appoint a mayor to fill the vacancy in that office even though the city’s
charter is silent on that point. It is worthwhile pointing out here that Section 3 of the city’s charter
provides that “No person shall be eligible to the office of Mayor and Alderman unless he is at least
twenty-one years old and a qualified voter under the laws of Tennessee, and has been a bona fide
resident of the Town for at least one year….” Those qualifications apply to the “eligibility” of
members of the city council; for that reason they apply to appointees as well as elected members of the
office of mayor and aldermen.
Incidentally, a “qualified voter” of the town does not mean a registered voter, only one who is
qualified to be a registered voter. Tennessee Code Annotated, § 2-2-102 provides that: “Any citizen of
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the United States eighteen (18) years of age or older who is a resident of this state is a qualified voter
unless the citizen is disqualified under the provisions of this title or judgment of infamy pursuant to
§ 40-20-112.”
Mayor pro tempore under the city charter
As far as I can determine, there have been only a tiny number of cases in which the question of
whether the vice mayor can function as the mayor when the office of mayor is vacant. In Babbidge v.
City of Astoria, 36 P. 291 (1894) the mayor resigned. The city’s charter provided that: “an office shall
be deemed vacant on the death or resignation of the incumbent…that [a vacancy] must be filled by
appointment of a majority of the remaining members of the common council” for the remainder of the
term.” [At 291-92] The charter also provided that: “during any absence of the mayor from the council,
or if he be unwell or for any reason be unable to attend, the president of the council shall be the acting
mayor and perform all the duties of such office during such absence or disability….” [At 291-92]
A question arose as to the validity of certain ordinances signed by the president of the common
council while the office of mayor was vacant. In holding that the ordinances were invalid, the Court
reasoned that:
It is manifest from the language of these [city charter] provisions that it is a
temporary absence or disability, only, which authorizes the president of the council
to act in the place of the mayor, and perform his duties. He is not authorized to
approve ordinances, or perform the duties pertaining to the office of mayor, when
such office is vacant and without an incumbent. It is “in the absence of such
mayor,” or “in the absence of the mayor from the city,” or “during any absence of
the mayor from the city, or if he be unwell or unable to attend,” that the president
of the council shall perform the duties of mayor, “approve and sign all
ordinances,” or have the right and power to approve such ordinances as may be
passed during such absence.” Within the purview of the charter, the office of
mayor is an important branch of the city government, the duties of which can only
be performed by an incumbent, or someone acting in his stead, when he is absent
or disabled. The charter contemplates that a mayor is in esse [“in being, actually
existing”—Black’s Law Dictionary, 6th ed. , 1990] and that the office shall not be
without an incumbent in the case of death or resignation, for it provides that it
must be “filled” by the city council. So that, when a vacancy occurred by the
resignation of Crosby, it was the duty of the council to appoint a mayor…. [At
292.]
The Court continued that the charter contemplated that the city not conduct any important
business until a mayor was selected.
That same case became an issue in the same court a few years later, in State ex rel. Dyer v.
Kirkpatrick, 148 P. 51 (1915). There the mayor died and Dyer, the chairman of the council, began to
perform the duties of the mayor. This time the Court sided with the mayor, based on a difference in the
language of the pertinent city’s charter. Article 1, Section 4, read that the city council would elect a
chairman of the city council who would “perform the duties of the mayor in the absence of the mayor or
his inability to act.” Article 3, Section 6 also read that “In case of a vacancy occurring in any of the
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offices provided under this act, the mayor, with consent of the common council shall fill such vacancy
until the next regular election or the time fixed by this act for the appointment of appointed officers, and
until a successor shall be elected or appointed and qualified.” [At 53]
The Court concluded that under that language that the chairman of the city council, became the
mayor when Matlock died: “The charter prevents any real vacancy by conferring upon the chairman of
the council all the duties and responsibilities of the mayor. For all practical purposes the council did
select a mayor when that body elected a chairman of the council, whose right to act, however, was
suspended until, from and cause, the chief executive of the city was unable to act.” [At 52-53].
Finally, in Nolan v. Representative Council of City of Newport, 57 A.2d 730 (1948), the mayor
died, and the argument was whether the chairman of the board of aldermen became the mayor. The
Court held that the answer was no, reasoning that “We have found no case which holds that a vacancy
caused by death is governed by a provision relating to the mere absence of the incumbent or his inability
to serve.” The charter clearly provided that the chairman of the board of aldermen could act only when
the mayor was “absent.” “In legal terminology,” reasoned the court, “a dead person is not spoken of as
merely absent.” [At 731] The Court pointed out that the petitioner had, pointed to a case “almost on all
fours to the contrary. Babbidge v. City of Astoria, 25 Or. 417, 36 P.291, 42 Am.St.Rep. 796. As far as
we are aware that case is the current of authority.” [At 732] “However,” continued the Court, “apart
from that authority, we are of the opinion in the case at bar, on reason, it is clear that the legislature did
not intend by Sec. 24 to provide against the contingency of a vacancy in the office of mayor when it
provided that the chairman of the board was to perform the mayor’s duties in case of his absence or
inability to act. [At 732]
Those are all the cases we have to go on. It is likewise clear that the City Charter does not
contemplate that the recorder serve as mayor, except in the case of his absence, sickness, or other
disability of the Mayor…,” and that none of that language refers or includes the resignation of the
mayor, in such a case, there being no mayor. There is not even any wiggle room in the City Charter to
justify anyone to act as mayor after the resignation of the mayor, as there was in State ex rel. Dyer v.
Kilpatrick.
I am not sure whether the Tennessee courts would follow those cases, although when the charters
clearly authorize a person to act as the mayor only in the absence or disability of the mayor, it is difficult
to ignore the charter. Arguably, under such a charter, difficulty appointing a mayor might lead to a
standstill in at least some of a city’s business. On the other hand, such a charter should, in theory at
least, lead the city to quick action on the appointment of a mayor. But many cities go for long periods
without a mayor because they cannot agree on someone to fill a vacancy in that office, and they survive.
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