Request By:
Mr. J. Robert Jennings
Attorney at Law
7923 Alexandria Pike
Alexandria, Kentucky 41001
Opinion
Opinion By: Steven L. Beshear, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
You represent the Campbell County Public Library Board. The Board of Trustees desires to condemn real estate in Newport for the purpose of constructing an addition and providing for parking for its library building. Thus the ultimate question is whether the Campbell County Public Library District may condemn real property for the purpose of improving its library facilities.
KRS 173.520(2)(a) provides that a library district board may, inter alia, purchase or lease buildings and grounds for a district library. However, the statute does not provide for the power of condemnation. While KRS 173.520(1) and 173.745(1) provide that the library district board shall "do all things necessary to provide efficient library service," that language does not standing alone grant the power of condemnation. KRS 173.745(2)(a) provides that the library district board may purchase or lease necessary real estate for library purposes. Cf. KRS 416.540(2), defining "condemnor" to include cities, counties, taxing district "authorized and empowered by law to exercise the right of eminent domain. " (Emphasis added).
In
Bell's Committee v. Board of Education, 192 Ky. 700, 234 S.W. 311 (1921) 312, the court in a landmark case observed that the right of eminent domain rests primarily with the sovereignty and may not be exercised except in futherance and in aid of a public purpose. See § 13, Kentucky Constitution. But, the court went on, the sovereign may delegate it or the power to exercise it to other agencies performing public service. The court ruled as to the power of condemnation:
"The delegation of the power is usually exercised by the legislature through a statutory enactment, and such statutes are to be strictly construed, since the power will not be conferred by implication." (Emphasis added).
A Shepardizing of Bell's Committee, above, reveals no change in the judicial rule that the power of eminent domain requires an express statute. Also see the federal recognition of that principle in
United States Ex Rel. TVA v. TWO Tracts of Land (U.S. C.A. -6, 1972) 456 F.2d 264, 267.
You raise the hope that KRS 58.140 may authorize a library district to condemn land for its statutory purposes. KRS 58.140 reads:
In the event a governmental agency is unable to acquire, by purchase or agreement, any real property deemed necessary for the purposes of a public project, such agency may acquire the same by condemnation. The procedure for condemnation shall be as provided in the Eminent Domain Act of Kentucky.
However, you have told us that the library district does not contemplate revenue bond financing under KRS Chapter 58. It plans, you say, to engage in mortgage financing.
The right of condemnation in KRS 58.140 applies only to real estate and to financing by revenue bonds under those sections, KRS 58.010 et seq. See
City of Jenkins v. Kentucky Water Co., Ky., 238 S.W.2d 167 (1951).
It is our opinion that the library district, under the facts given, has no power to condemn the real estate needed.
It is further our opinion that a library district can qualify to issue revenue bonds under KRS Chapter 58, since it is a special taxing district under § 157 of the Kentucky Constitution and is a "governmental agency" under KRS 58.010(3). If it does issue revenue bonds for the proposed project, the library district board can exercise the power to condemn real estate pursuant to KRS 58.140.