Request By:
Mr. Gary T. Mills
City Councilman
City of Middlesboro
124 Alpine Road
Middlesboro, Kentucky 40965
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of September 20 in which you as a member of the city council of Middlesboro relate the following facts and questions:
"A question has recently come up concerning the legality of the practice of paving driveways on private property, using city equipment and the property owner paying for the materials. The point that I want you to consider in your opinion is the fact that this paving is being done as part of a service offered by the City of Middlesboro to its taxpayers. This service is available to all tax paying citizens without any consideration of race, color, creed, sex, national origin, financial status or any other thing that would set one citizen apart from any other.
"Is there a statute that expressly prohibits this practice so long as it is for all taxpayers and offered as a city service? If this is a statutory violation, what is the prescribed penalty or penalties for said violation and are these penalities of a criminal nature?"
Our response to your basic question would be in the negative for the reasons hereinafter set forth.
Sections 3 and 171 of the Kentucky Constitution declare that tax money of a governmental unit, such as a city, may only be spent for public purposes. In addition, § 180 of the Constitution provides that no tax levied and collected for one purpose shall ever be devoted to another purpose. Referring to the case of City of Horse Cave v. Pierce, Ky., 437 S.W.2d 185 (1969), we quote as follows:
"[1, 2] It is recognized that a city has only such powers as are expressly or impliedly given it by the Legislature. Reconstruction Finance Corporation v. City of Richmond, 249 Ky. 787, 61 S.W.2d 631. And any doubt concerning particular municipal power is resolved against its existence. Allen for Use and Benefit of City of Middlesboro v. Hollingsworth, 246 Ky. 812, 56 S.W.2d 530."
See also Juett v. Town of Williamstown, 248 Ky. 235, 57 S.W.2d 411 (1933).
We next call your attention to McQuillin, Mun. Corps., Vol. 15, § 39.19, which reads in part as follows:
"All appropriations or expenditures of public money by municipalities and indebtedness created by them, must be for a public and corporate purpose, as distinguished from a private purpose, at least, unless the powers of the particular municipality in regard thereto have been enlarged by the legislature, which is itself limited in its power to authorize expenditures or indebtedness for other than public purposes. . . ." (Emphasis added.)
"A fortiori, a municipality has no power, unless expressly conferred by constitutional provision, charter or statute, to donate municipal moneys for private uses to any individual or company, not under the control of the city and having no connection with it, although a donation may be based upon a consideration. . . ." (Emphasis added.)
Thus, the use of city street equipment and material for paving private driveways purchased with public funds is illegal and unconstitutional. The fact that the private citizens whose driveways are paved will repay the city for the material used is of no consequence as the question hinges on the initial use of such equipment and material purchased with public municipal funds.
In response to your other questions, the members of the city council could be held responsible for the misuse of public property which would constitute an abuse of public office under Ch. 522 of the Panal Code. In this respect we refer you to KRS 522.020 and 522.030. A violation of these sections would constitute either a Class A or Class B misdemeanor, subjecting the officer to criminal prosecution. Aside from the criminal aspects, there would also exist the right to recover the costs involved in the misuse of the equipment and material in a taxpayer's suit. In this respect we refer you to Wagner v. Wallingford, 257 Ky. 477, 78 S.W.2d 326 (1935), in which the court declared with respect to the unauthorized expenditure of funds utilized illegally would be as follows:
"Obviously, the primary right to recover the sums sued for in this action rests in the municipality. We expressly so held in the case of Schoening v. Paducah Water Company, 230 Ky. 453, 459, 19 S.W. (2d) 1073. Before a taxpayer may maintain an action to recover funds due a municipality, he must request the appropriate officers of the municipality to act. Until it is made to appear that the public officers charged with a duty to act have refused to do so, there is no occasion for intervention of a citizen and taxpayer for the protection of himself and others similarly situated. 19 R.C.L. 1167, § 441."
We also might call your attention to the remote possibly of removing the members of the city legislative body by impeachment under Sections 66 to 68 of the Constitution and KRS 63.020 to 63.070.