Request By:
Norbert P. Gettys, Esq.
Attorney and Counsellor at Law
106 East Third Street
Suite B
Covington, Kentucky 41011
Opinion
Opinion By: Robert F. Stephens, Attorney General; By: Walter C. Herdman, Assistant Deputy Attorney General
As City Attorney for the City of Highland Heights, a city of fifth class, you request, on behalf of the City Council, an Opinion concerning the following:
You relate that the city's volunteer fire department is self governing, non-profit corporation; however, the department needs a fire truck. If the city purchases a fire truck the question is raised as to whether it could in turn lease or sell the truck to the department without violating Section 179 of the Constitution?
KRS 87.010 authorizes, as you indicate, the city to purchase and lease personal property. At the same time Section 179 of the Constitution prohibits political subdivision from appropriating money or lending its credit to any corporation, association or individual with certain exceptions not applicable here. This section of the Constitution applies, however, to municipal donations or gifts to a corporation and would have no application with respect to the city's right to lease or sell municipal property. See Hager v. Kentucky Children's Home, 119 Ky. 235, 83 S.W. 605 (1904). We might also add that KRS 82.060 permits cities to sell surplus real estate which the court indicates includes the right to lease. See Abernathy v. Irving, Ky., 355 S.W.2d 159 (1962). This same principle would also apply to personal property.
Thus, there is little question in our mind that the city could lease or sell a fire truck that it owns to the volunteer fire department if it was no longer needed. A problem may arise however, in that the principle involved in the city's right to sell or lease municipal property, is the fact that it is no longer needed for the public municipal purpose for which it was acquired and this creates, in our mind, a serious doubt that the city can simply purchase property such as a fire truck where it has no fire department and therefore had no municipal use for it to begin with, and then turn around and sell it to a private independent organization. See McQuillin, Municipal Corporations, Volume 10, Sect. 28.02. We, therefore, doubt that the proposed transactions would be legal.