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Allan J. Wade
Brandy S. Parrish

April 29, 2013

Mr. Harold Collins

Council Member, District 3
Memphis City Council
City Hall Room 514
Memphis, Tennessee 38103

RE: Forrest Park?Revised Opinion
Dear Councilman Collins:

You have requested an opinion from us whether any provision of state or federal law
restricts the City in renaming Forrest Park, removing or relocation of the equestrian statue
honoring Nathan Bedford Forrest and/or relocation of the remains of Forrest and his Wife.1 This
opinion corrects the date the remains of Forrest and his wife were moved from Elmwood
Cemetary from September 11, 1904 to November 11, 1904. We have also updated information
about the availability of Elmwood Cemetary as a possible location for the re-interment of Forrest
and his wife and for the relocation of the equestrian statue.

HISTORY AND BACKGROUND

By the Tennessee Acts of 1873, the Tennessee General Assembly conveyed certain land,
containing about 10 acres, in fee simple absolute to be used solely and exclusively as a public
hospital and for no other purpose on the condition that said hospital shall be open and free of
charge to all destitute citizens of the state in need of hospital bene?t. The City erected and
operated the Memphis Hospital on the present site of Forrest Park for over 20 years.

By a subsequent public act, adopted in 1895 the Tennessee General Assembly authorized
the City to sell the Memphis Hospital Grounds and to deposit the proceeds of any such sale in the
general treasury of the City to be used for the City?s general purposes or to purchase additional
property and construct another hospital. This act also authorized the City to retain said Memphis
Hospital Grounds and to convert the same into a public park, or devote the same to any other
public municipal purpose as the City may see fit.

 

1 We have read but not con?rmed that one of Forrest?s grandchildren may also be buried at the site.

 April 29, 2013

On August 10, 1899 the City?s legislative Council received a resolution adOpted by the
Confederate Historical Association urging the Council to name the old Memphis Hospital
Grounds in honor of former Confederate General Nathan Bedford Forrest. This resolution was
received by the Council unanimously with all Council members standing. The City?s legislative
Council subsequently adopted an ordinance recognizing its authority to convert the grounds
formerly occupied by the City hospital into a public park or to devote the same to any municipal
purpose determined by the Council. The Council exercised its authority by ordinance which
provided as follows:

Whereas, all the buildings have now been removed from said ground; therefore,
be it ordained by the Legislative Council of the City of Memphis, that the grounds
bounded on the North by Madison Street, on the East by Dunlap Street, on the
South by Union Avenue, and on the West by Manassas Street. and formally known
as the Memphis Hospital Grounds, are hereby constituted and established a public
park of the City of Memphis, to be known as Bedford Forrest Park in honor of our
distinguished hero, Gen. N.B. Forrest.

The Council also invited the historical societies in the City and the citizens of Memphis to erect a
statue of Gen. Bedford Forrest. During the reunion of the Confederate veterans in 1901 a
cornerstone commemorating Forrest was laid in the park.

On March 25, 1903 the NB. Forrest Monument Association and Confederate Historical
Association petitioned the Legislative Council to authorize a special tax levy to commission an
equestrian statue of Gen. N.B. Forrest to be located at Bedford Forrest Park. The council
members expressed great sympathy with the request but objected to any proposed appropriation
or tax levy because of the urgent necessity for funds for streets, sewers and bridges. The Council
voted to reject the petition by unanimous vote. However, each member of the Council voted to
donate their salary for that Council meeting to the Forrest Monument Association fund.

On April 15, 1903 the Tennessee General Assembly enacted a public act empowering and
authorizing the City of Memphis to levy annually a Special tax on all taxable prOperty in the City,
not exceeding two cents on $100 of assessment for the years 1903 and 1904 to be in addition to
all other general and Special taxes, the proceeds of which was to be devoted exclusively for the
purpose of building and completing a statue of Gen. Bedford Forrest. We have found no
evidence that the Council changed its original position and levied any such special tax.

On May 18, 1905 the Forrest monument was of?cially dedicated by the Forrest
Monument Association. The monument was the culmination of extensive fund raising and work
by the Monument Association. The monument weighs 9500 pounds and cost $28,000.00. As
previously indicated we can ?nd no record that any special tax was levied by the Council or that
any public funds were appropriated by the legislative Council for the statue. Based on material
produced by the Monument Society regarding the dedication, it appears that the total amount for
the statue and all expenses associated with its dedication, including the interment of Gen. Forrest
and his wife, were raised by the society from private donations.

?3 April 29, 2013

Elwood Cemetery records re?ect that Forrest and his wife were disinterred on November
1 l, 1 904.

Our research reveals that the efforts to rename the old Memphis Hospital Grounds and to
erect an equestrian statue was a momentous undertaking. It appears that at least one segment of
the Memphis community was completely committed to this endeavor. It also appears that
Memphis and Tennessee politicians were all supportive of the undertaking and its completion and
dedication was praised as one of the most signi?cant and symbolic tributes to those who were
protagonist in the Civil War. This observation and obsession with memorializing the City?s
involvement as part of the Confederacy is curious, since Memphis? and Tennessee?s involvement
in the Civil War as part of the Confederacy was hardly noteworthy.

Tennessee was the last southern state to secede ?om the Union and the ?rst state to rejoin
the Union. As the Pink Palace Museum reports, Memphis was one of the ?rst Confederate cities
to fall to Union forces after the Confederate army was defeated in the First Battle of Memphis on
June 6, 1862. The battle lasted a total of 90 minutes; the Mayor of Memphis, John Park,
surrendered shortly thereafter. The City was occupied by Union troops until July, 1865. On
August 21, 1864 General Forrest attempted a raid on Memphis to free Confederate troops
imprisoned there. Forrest abandoned his raid after Union troops thwarted his efforts. So, based on
Memphis? limited involvement as a part of the confederacy, the insistence on preserving
historical references to Memphis? ?eeting involvement in the Civil War seems unjusti?ed.

POLITICAL CONTEXT

The naming of the park and the erection of the equestrian statue in honor of Bedford
Forrest was considered then and possibly now by some to be a deserving tribute to his
accomplishments and as a lasting symbol of the South for which he fought. However, it would
not be fair to judge the signi?cance of these tributes outside of the context in which they
occurred. Irrespective of the merits and demerits of Bedford Forrest?s accomplishments and
beliefs, the larger question is the signi?cance of these tributes in light of the lack of a balanced
discussion and debate by all citizens of Memphis at the time the decision was made to name the
park and allow the erection of the equestrian statue in honor of Bedford Forrest.

The tribute to Bedford Forrest occurred some 40 years after the conclusion of the Civil
War. As the Commercial Appeal observed it was better to wait to honor Forrest until the
passions of the war had subsided and sectional animosity had grown pale. Slavery as a legal
institution ended some 40 years earlier after the passage and rati?cation of the 13th amendment
to the United States Constitution. Congress adopted the 14th amendment shortly thereafter and
in 1869 adopted the 15th amendment guaranteeing voting rights to all citizens without regard to
race, color or previous condition of servitude. From the end of the Civil War until 1870 most
southern states were under Union occupation during the reconstruction period.2 Most other states
were required to ratify the 15th amendment as a condition of reentry as one of the United States.

 

2 Tennessee escaped military reconstruction because its government was thought to be favorable to the Union.

41? April 29, 2013

Since Tennessee was one of the last states to join the Confederacy and one of the ?rst states to
leave it, Tennessee had already been re-admitted to the Union before Congress imposed
rati?cation of the 15?11 Amendment as a condition to readmission, and therefore Tennessee did
not ratify the 15th amendment and in fact adopted a joint resolution opposing black suffrage in
1870. Tennessee did not ratify the amendment until 128 years later.

During Reconstruction the ?rst African?American members of the Tennessee General
Assembly were elected. During the same period the ?rst African-American members of the
Memphis City Council were elected3. At the conclusion of reconstruction the Tennessee General
Assembly adopted a series of Jim Crow laws and poll tax requirements that greatly diminished
the political power and voting power of African?Americans. As a result of these laws, by 1884
all of the African?American members of the General Assembly had lost their seats. Two A?'ican?
American general were elected to terms in 1886 but never took their seats because
they were run out of Fayette County by white supremacists. From about 1884 until 1965 there
were no African-American members of the General Assembly. A.W. Willis, Jr. was elected to
the General Assembly in 1965 from Shelby County.

Prior to 1879 Memphis? legislative Council was elected from Speci?c voting districts,
which guaranteed A?'ican?American representation in the City?s legislative affairs. In 1879 the
state of Tennessee revoked charter of the City of Memphis due to the City?s inability to pay its
debts as and when they were due. On the same day the General Assembly re?established
Memphis as a taxing district and reconstituted its legislative Council to consist of eight members
to be elected at large. From and after 1879 until 1968 there were no African Americans elected
to the of?ce of Legislative Council. After the adoption of the City?s home rule charter in 1966,
Messrs. Fred L. Davis, James L. Netters and .0. Patterson, Jr. were the ?rst African?Americans
elected to the City?s legislative body since 1879.4

The signi?cance of these political events merely re?ects an overlooked view of the City
that existed at the time the park was named and the statue erected. During this time African?
American citizens were essentially disenfranchised from the political process and relegated to
second-class citizenship through a series of Jim Crow laws and intimidation, including 
which was conducted in an open and notorious fashion. In fact, were public events
attended by women and children. Ironically, Ida B. Wells was a prominent voice against such
practices.

Our historical review re?ects that the decision to name the park to permit the erection of
the equestrian statue in honor of Bedford Forrest was a political decision by the Council made at
the urging of Confederate and Monument Societies. It seems equally fair for the present Council
to make a political decision to rename the Park based on the desires of its various constituencies.
The only difference being the involvement of all points of view in the current debate. Unlike the
present process, it is fair to conclude that the decision to name the old Memphis Hospital

 

3 At that time Memphis legislative power was vested in a board of aldermen and a city council. African-
American representation was on the Council.

4 Even then the at large Council districting was later found to have diluted African American voting power in
City Council elections.

 5 April 29, 2013

Grounds after Bedford Forrest and to permit the erection of equestrian statue and to permit the
re?internment of Forrest and his wife on that property was a decision that did not re?ect the will
of the entire community and was not made after input from all segments of the entire community.

In our opinion the Council?s authority over the renaming of the Park, relocation of the
statue and re?interment of the remains of Mr. and Mrs. Forrest has a sound legal and political
foundation.

AUTHORITY OF THE CITY COUNCIL

It is our opinion based upon the authority granted by the General Assembly to the City to
sell, convert to a park or to convert the 01d Memphis HOSpital Grounds to any use that it saw 
that the City has the complete and absolute authority to rename Forrest Park to any name that its
Legislative Council sees The Council exercised its authority to name the old Memphis
Hospital Grounds Forrest Park by ordinance; as such it has the authority to rename the old
Memphis Hospital Grounds to any other name that it chooses by ordinance.

Is our opinion that the Forrest Monument Society donated the equestrian statue to the
City of Memphis without restriction or condition; consequently, that statue may be moved or
relocated to another location in the discretion of the Council. If the Forrest Monument Society
still exists as a lawfully constituted non?pro?t entity, the City can make arrangements with that
entity to take possession of the statue.

Private citizens caused Forrest Park to be placed on the National Register of Historic
Places. The National Park Service advises that the designation on the National Register of
Historic Places imposes no legal restrictions on the use that the owner of any designated site
may make of his or her property, as long as there are no federal funds attached to the property. If
federal monies are attached to the project, any changes to the property must be submitted to the
Advisory Council on Historic Preservation for comment. Our research has not revealed any
federal monies being attached to Forrest Park or to the designation on the National Register of
Historic Places. So that designation does not restrict the City in renaming the park or in
relocating the equestrian statue.

The remains of Forrest and his widow were moved from Elmwood Cemetery to the park
on November 11, 1904. We have not yet determined whether any perpetual care funds have
been allocated to these new gravesites. Pursuant to Tennessee Code Annotated 
cemeteries owned by municipalities are exempt from certain provisions of Tennessee cemetery
laws. The City is not exempt from the provisions of Tennessee Code Annotated 46?4?103,
which authorizes any municipality to bring or to join in a suit in the Chancery Court of this
county to have the remains of all deceased persons buried in a particular burial ground removed
from that burial ground and reburied in a suitable repository to be obtained for that purpose. Any
interested person, which essentially means any surviving spouse and children or the nearest
relative or relatives by consanguinity of any one or more of deceased persons whose remains are
buried in a burial ground, must be made a party in any such suit.

 April 29, 2013

In order to reinter Forrest and his widow, the City would be required to initiate a
Chancery suit for this purpose and secure a suitable place for reinterment. We have been advised
that the Forrest family burial plots still exist at Elmwood Cemetary and that there is adequate
room for the reinterment of Forrest and his wife. We have also been advised that there is also
room for the Forrest statue. In fact, the last will and testament of NE. Forrest probated in Shelby
County, Tennessee on December 17, 1877 provides in pertinent part:

FIRST I commit my body after death to my family and friends with the request
that it may be entered among the Confederate dead in the Elmwood Cemetery near
the City of Memphis, it being my desire that my remains shall rest with those of
the brave men, men who were my comrades in war and shared with me the danger
and peril of battle ?elds ?ghting in a cause we believed it our duty to uphold and
maintain.

The relocation of the remains of Forrest and his widow and the equestrian statue would be in
keeping with his wishes and would provide a more ?tting tribute to his legacy and that of the
Confederate soldiers who he commanded.

I trust we? have adequately responded to your inquiry and provided you with the historical
and political contexts that you requested. We will provide any additional information or
explanation that you may request.

Very truly yours,

  

J. Wa 

  

Enclosures

Cc: Councilman William Boyd
Councilmernbers

Mayor

City Attorney