Request By:
Mr. B. Kelly Williams
345 Park Avenue
Pineville, Kentucky 40977
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As a member of the Pineville City Council, you seek an opinion concerning the following:
"When I became councilman two (2) months ago the City had a large indebtedness for the General Fund, much more than any ordinary revenue could take care of. Recently the City Council due to an indebtedness beyond any ordinary revenue enacted an occupational tax. I would like to know if the Mayor and the members of the Council are personally liable for making indebtedness regardless if the revenue can't cover this indebtment. I have been voting 'no' for the extraordinary monthly claims and loans made at the bank for it."
Under Sections 157 and 158 of the Constitution, the maximum indebtedness that any city may incur cannot exceed the anticipated revenue for the year unless there is an affirmative vote by two-thirds of the people living in the city. When an indebtedness is incurred in excess of the anticipated revenue and it is not for essential governmental purposes, only the excess of the anticipated revenue would be considered void.
McKinney v. Board of Trustees, 144 Ky. 5, 137 S.W. 839 (1911).
Public officers are bound only to exercise good faith and proper legal diligence in discharging the duties of their office. The general rule is that a municipal officer is not liable to private suit for his acts done with care in the honest performance of his corporate or governmental duties.
Spillman v. Beauchamp, Ky., 362 S.W.2d 33 (1962). Reference McQuillin, Mun. Corps., Vol. 4, Sections 12.208 and 12.222.
At the same time we wish to call your attention to KRS 92.360(2) which provides, in effect, that the legislative body of any city shall not in any year expend any money in excess of the amount levied and collected for the year. Subsection (3) of this statute provides that no member of the legislative body of any city shall knowingly vote for any appropriation or contract in violation of this statute. Such violation incidentally carries a penalty of a fine and possible imprisonment under KRS 92.990(5).
We also might add that any unauthorized expenditure of public municipal funds is of course illegal and such funds may be recovered in an action by the municipality which has the primary right of recovery as held in the case of
Wagner v. Wallingford, 257 Ky. 477, 78 S.W.2d 326 (1935). Though the city has the primary right and duty to recover money wrongfully paid, nevertheless, if, upon demand, the city fails or refuses to act in the matter, a taxpayer's suit may be maintained for the recovery of such funds.
We trust the above answers your questions.