Request By:
Mr. James Malone
Staff Writer
Mt. Sterling Advocate
P.O. Box 406
Mt. Sterling, Kentucky 40353
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Thomas R. Emerson, Assistant Attorney General
This is in reply to your letter asking whether a city of the fourth class may enter into a contractual arrangement to provide police and fire protection to a private party outside the city limits. If such an undertaking is legal, you also ask whether the contract must be approved by the city council to be binding and whether the city is obligated to provide equal consideration to any private party or business in the county requesting a similar arrangement.
Municipal corporations in Kentucky possess only such powers as are expressly granted or necessarily implied in statutes constitutionally enacted. See
Juett v. Town of Williamstown, 248 Ky. 235, 58 S.W.2d 411 (1933). Furthermore, in OAG 71-477, copy enclosed, we said in part as follows:
". . . It is also settled that when the Legislature confers a power upon a subordinate body to be performed in a specified manner, there is an implied restriction upon the exercise of the power in excess of the grant.
Johnson v. Correll, Ky., 332 S.W.2d 843 (1960). See also
Jefferson County v. Jefferson County Fiscal Court, 269 Ky. 535, 108 S.W.2d 181, 183 (1937);
Bruner v. Jefferson County Fiscal Court, 239 Ky. 618, 40 S.W.2d 271, 273 (1931). . . ."
In addition, in 56 Am.Jur.2d, Municipal Corporations, § 114, the following appears:
"The police department of a municipality derives its authority from the state, and where the municipality is not expressly or impliedly authorized to do so, it can neither enlarge nor restrict the duties of the police department or of its officers and agents as defined by the legislature."
Generally, the establishment of a city police force constitutes part of the measures adopted to preserve peace and protect the legal rights of the citizens. A city police force is appointed to preserve peace, good order and security in the city. It has the power and duty to perform general police functions and in so doing it must act in a manner that is not unreasonable, arbitrary or capricious. See 62 C.J.S., Municipal Corporations, § 563.
Pursuant to KRS 95.700 the city legislative body in a city of the fourth class is authorized, by ordinance, to establish a police department for the city, appoint its members, and provide for their number, grades, compensation and regulation. There is, however, no statutory provision that we are aware of in KRS Chapter 95 (dealing with city police and fire departments), KRS Chapter 86 (dealing with the organization and government of cities of the fourth class) or anywhere else permitting a city of the fourth class to enter into contractual arrangements with private persons outside the city limits to provide police protection for such persons. The General Assembly has specified the means by which cities of the fourth class may provide for police protection and, therefore, the city is limited by and must conform to the authority conferred upon it by statute (KRS Chapter 95).
In connection with the city contracting with private persons in the county to provide them with fire protection services, we assume that there are no fire protection districts (see KRS Chapter 75) in the unincorporated areas of the county and that there is no county fire department operating in the county. At this point we direct your attention to KRS 95.830 dealing with the use of fire apparatus outside the city limits. Subsection (1) of that statute provides:
"Any city in the state owning or controlling fire apparatus may take it to extinguish fires to any point in the county in which the city is located, into a smaller territory in that county, or into areas of another county or state, as determined by the city legislative body. The apparatus shall be so used only in conformity with reasonable terms and regulations which the city legislative body may prescribe."
Under the above-quoted statutory provision a city owning or controlling fire apparatus may enact reasonable regulations relating to the use of such apparatus outside the city. This provision extends the city's power concerning fire protection to operations in unincorporated territory. Thus, extraterritorial assistance is specifically authorized by statute. The right to extend fire protection services into the county would, in our opinion, imply the right to contract for such fire protection services under reasonable rules and regulations enacted by the city's legislative body. See OAG's 73-744, pages 1-3, and 38,727, copies of which are enclosed.
If the city decides to contract for fire protection services with county residents, the city's governing body should authorize such a program pursuant to KRS 95.830 and enact appropriate and reasonable rules and regulations in connection with the program. The city legislative body, rather than the municipal fire department, is the proper entity to adopt and implement the program. While the city, generally, must be fair and impartial in the utilization of such a program and as to who it decides to contract with, practical considerations such as limited manpower, equipment and financial resources, may preclude it from accepting everybody in the county who applies for fire protection service.