Request By:
Honorable Damon R. Talley
City Attorney
City of Horse Cave
P.O. Box 326
Horse Cave, Kentucky 42749
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
This is in answer to your letter of January 25 in which you request an opinion concerning the following:
"As City Attorney of the City of Horse Cave, Kentucky, a Fifth Class city, I have been requested by the City Council to give them a legal opinion as to the proper procedure for acquiring a right-of-way from the Mayor of the City of Horse Cave.
"The City is contemplating constructing a by-pass across land presently located within the city limits of the City of Horse Cave. A portion of the land is presently owned by James K. Palmore, Mayor of the City of Horse Cave. How can the City acquire title to the land? Can the Mayor give the property to the City? Can the Mayor and the City agree to a fair market value and the City pay the Mayor the fair purchase price for the land? If not, then will it be necessary to initiate condemnation procedures in order to obtain the property?"
In response to the questions outlined above, we are enclosing a copy of OAG 76-35 which holds, in effect, that any attempt by an officer of the city to execute a contract to sell land to the city would constitute a violation of KRS 61.280. This statute prohibits any officer of a fifth class city from being interested, directly or indirectly, in any contract with the city. On the other hand, as pointed out in said opinion, such land could be acquired by condemnation under the city's general power to acquire property for public purposes found in KRS 87.090.
One of the alternative mentioned in your letter was whether or not the mayor could give the property to the city without violating the terms of KRS 61.280, and our response to this question would be in the affirmative. Referring to the case of Chadwell v. Commonwealth, 288 Ky. 644, 157 S.W.2d 280 (1941), it was held, in effect that the legislature intended that the conflicting interest be confined to some monetary consideration. Again, in the case of Commonwealth v. Withers, 266 Ky. 29, 98 S.W.2d 24 (1936), we find the Court of Appeals stating and we quote:
"It is a salutary doctrine that he who is entrusted with the business of others cannot be allowed to make such business an object of profit to himself. This is based upon principles of reason, of morality, and of public policy. These are principles of the common law and of equity which have been supplemented and made more emphatic by the foregoing and other statutory enactments. In their application and operation it is impossible to lay down any definite rules defining the nature of the interest of the officer, or indicating the line between that which is proper and that which is unlawful.
In general, the disqualifying interest must be pecuniary or proprietary by which he stands to gain or lose something. . . ."
Under the circumstances, it would appear that the city can acquire the land in question by one of the two methods; either by condemnation or by gift without reservation.