Request By:
Mr. Phil S. Crutcher, Jr.
Mayor, City of Northfield
2010 Northfield Drive
Louisville, Kentucky 40222
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter raising a question concerning a contribution by a city of the fifth class to a nonprofit corporation involved in zoning matters. If the answer is in the negative you ask whether the city may pay a portion of the attorney's fees to the attorney representing the corporation.
An organization known as BRAD (Brownsboro Road Area Defense) has been incorporated as a nonprofit corporation. Its primary purpose is to provide a unified group of people to oppose zoning changes considered unfavorable to the area. Most of the funds collected by BRAD are expended to retain legal counsel to represent BRAD's interests before zoning boards and in courts of law. The corporation is run by a board of directors composed of representatives from the various cities and subdivisions which have joined the organization. No one city has control over the Board's decision making process, including the expenditure of funds.
You state your city believes that many residents are in favor of the city joining the organization in question. If the city did join its financial contribution would come from the proceeds of the ad valorem property taxes on real estate located within the city. Few of the matters handled by BRAD would involve property inside the city of Northfield but zoning decisions could affect the city from the standpoint of traffic, noise, lights and other environmental factors.
It has been suggested that if the city cannot contribute directly to BRAD, it could pay a fixed amount to the attorney for BRAD who would then reduce his fees charged to BRAD and provide the city with a percentage of representation pursuant to the amount paid by the city.
The powers of all cities are limited to those specifically granted or implied from some specific grant. In
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933), the Court said in part that municipal corporations possess only such powers as are expressly given or necessarily implied in statutes constitutionally enacted and, if there is a fair and reasonable doubt of the existence of the power, it should be resolved against the municipality. See also
South Covington & C. St. Ry. Co. v. Berry, 93 Ky. 43, 18 S.W. 1026 (1892).
In McQuillin Mun. Corp. (3rd Ed.), Vol. 15, § 39.19, it is stated that 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, unless the powers of the municipalities in regard thereto have been enlarged by the legislature. The author in the same section further states that a municipality has no power, unless expressly conferred by constitutional provision, charter or statute, to donate municipal funds for private uses to any individual or company not under the control of the city and having no connection with it. See also OAG 76-397, copy enclosed, for a more complete discussion of the various authorities cited above, as well as OAG's 74-437 and 78-205, copies enclosed.
Several sections of the Kentucky Constitution must be considered in connection with the matter you have presented. Section 179 states in part that the General Assembly shall not authorize any city to appropriate money to any corporation, association or individual with certain exceptions not applicable here. See
Board of Education v. City of Corbin, 301 Ky. 686, 192 S.W.2d 951 (1946) and Valla v. Preston Street Road Water Dist. # 1, Ky., 395 S.W.2d 772 (1965), where the Court said that the restriction in Section 179 of the Kentucky Constitution against appropriating money for others applies to donations to projects from which no benefit will be received by the city or in which it may not independently engage. Sections 3 and 171 of the Kentucky Constitution require that expenditures of public funds be for public purposes.
Thus, a city cannot appropriate public funds to nonprofit corporations or to associations or individuals in absence of legislative authorization when it has no control of such organizations and no direct connection with them. Furthermore, all appropriations of public money by municipalities must be for a public and corporate purpose rather than for private uses. In our opinion, on the basis of what you have set forth concerning the BRAD nonprofit corporation, the city cannot appropriate public funds directly to the corporation or to attorneys representing that corporation.