Request By:
Mr. Sherman Bowman
Hart County Judge Executive
P.O. Box 486
Munfordville, Kentucky 42765
Opinion
Opinion By: David L. Armstrong, Attorney General; By: Charles W. Runyan, Assistant Deputy Attorney General
Your letter concerns some dirt donated to the county. It reads in part:
"Please accept this letter as a request for clarification on the authority of fiscal court to use county equipment on private property to pick up dirt that has been donated to the county and to be used on county property.
"Hart County Fiscal Court was donated 15 to 20 loads of dirt by a private citizen at no charge or under no special conditions to the county. The county used the dirt as fill material on property owned by the county. Also, the individual who donated the dirt, signed a letter outlining the aforementioned facts.
"Respond to the legality of using the county equipment to go on private property to haul donated dirt to be used on county property."
As we understand it, the fiscal court accepted the donation of the excess dirt without any conditions being imposed by the donor, except that it be used for a public purpose. You say that the dirt was used by the county road department as fill material on property owned by the county.
The fiscal court has the authority to acquire property for county purposes. See KRS 67.080 and 67.083. The courts will not interfere with the broad exercise of discretion of the fiscal court in that regard, unless there is a clear showing of abuse amounting to fraud or action indicating arbitrariness or capriciousness.
A & W Equipment Company v. Carroll, Ky., 377 S.W.2d 895 (1964) 898.
Here the property was dirt. The transaction of turning over the dirt to the county was a gift. See
Bowman's Admr's v. Bowman's Ex'r and Adm'r, 301 Ky. 694, 192 S.W.2d 955 (1946). See also
Browning v. Browning, Ky., 551 S.W.2d 823 (1977). In the latter case the court observed that a "gift" in a common, ordinary, popular sense is a voluntary and gratuitous giving of something by one without compensation to another who takes it without valuable consideration.
It is our opinion that by reasonable implication, arising out of the fiscal court's express powers under KRS 67.080 and 67.083, a fiscal court may accept property by gift or donation where there are no conditions attached except that the property be used for a public purpose, which is the precise situation here. See 20 C.J.S., Counties, § 165 and § 166, pages 994-995. See also
Chateau v. City of St. Louis, 331 Mo. 1206, 56 S.W.2d 1050, 1051 (1932).
The Supreme Court of Nebraska, in Bowley v. City of Omaha, 181 Neb. 515, 149 N.W.2d 417 (1967) 422, pointed out that a gift for a public purpose may be tendered to a municipality upon conditions or reservations, so long as those conditions or reservations do not unreasonably interfere with the municipal use and enjoyment of the property. Here the only condition was that the dirt would be used for a lawful county purpose.
CONCLUSIONS
It is our opinion that the fiscal court lawfully accepted the donation of the dirt for a county purpose. Further, it is our opinion that the using of county equipment to go onto the private property of the donor to pick up the dirt was legal. County equipment can be used only for a public or county purpose. That is precisely what was done here. See § 171,