Request By:
Lt. Major Bill Elliott
Administrator
The National Society of
the Volunteers of America
P.O. Box 1600
Lexington, Kentucky 40592
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in response to your letter of May 7 in which you relate that your organization, the Volunteers of America, is a national religious, nonprofit social welfare agency incorporated in New York in 1896, has applied to the city of Winchester for a grant to assist the organization in operating a give-away program at its thrift store in the city. You further relate that the city attorney has advised you that such a grant or appropriation would be illegal since your organization did not represent a governmental agency. Thus, your question is whether or not such a grant by the city would be legal.
Our response to your question would be in the negative. As pointed out in the case of
City of Horse Cave v. Pierce, 437 S.W.2d 185 (1969), it is recognized that a city has only such powers as are expressly or impliedly given it by the legislature and any doubt concerning a particular municipal power is resolved against its existence. See also
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933).
Referring next to McQuillin, Mun. Corps., Vol. 15, § 39.19, we quote 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 thereof have been enlarged by the legislature, which is itself limited in its purpose 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).
Referring next to § 39.26 we find the rule stated that unless the power to do so has been expressly designated by the legislature within constitutional authorization, the municipality has no power to donate money, issue bonds or otherwise aid a private individual or corporation. With this rule in mind we are faced with an apparent constitutional objection to such an expenditure in § 179 of the Constitution. This provision prohibits the General Assembly from authorizing a city to appropriate money to any corporation, association or individual, with certain exceptions not applicable in this instance. See
Board of Education v. City of Corbin, 301 Ky. 686, 192 S.W.2d 95 (1946).
In
Ezelle v. City of Paducah, Ky., 441 S.W.2d 162 (1969), the court upheld a city donation of public funds to the local chamber of commerce. However, that decision was based on the fact that in KRS 102.060 [subsequently repealed] the legislature had specifically authorized such a donation. It is clear from the opinion that the donation would have been illegal had it not been for the specific authorization of KRS 102.060.
We further call your attention to a 1980 Act of the General Assembly relating to cities of the third class, such as Winchester, which specifically states pursuant to KRS 85.125 that the legislative body shall be authorized to pay public funds to any nonprofit hospital located within the city and serving the citizens generally of the city and county. The passage of this act further illustrates the fact that in order for municipalities to appropriate public funds to private nonprofit organizations, or other organizations unrelated to the city and over which they have no control, specific legislation so authorizing must be enacted.
We are aware of the enactment of KRS 82.082 which grants to cities of all classes limited home rule power, however, until the court clarifies the extent of such power and possibly its constitutionality, we must take the position that it would not alter or modify the legal objection to such a grant cited above.