Request By:
Honorable William E. Fletcher
Princeton City Attorney
P.O. Box 672
Princeton, Kentucky 42445
Opinion
Opinion By: David L. Armstrong, Attorney General; Walter C. Herdman, Asst. Deputy Attorney General
In your letter of June 27 you refer to the fact that the city has created by ordinance a water and sewer commission as an agency of the city. This commission is generally responsible for the day to day operation of the water and sewer department. With respect to the authority of the commission you enclose the ordinance and relate the following facts and question:
"The commission is now contemplating purchasing property on which they propose to construct an office building. According to the ordinance creating the Commission, of which I am enclosing a copy, title to all property must be taken in the corporate name of the City. With the above in mind, my specific question is as follows: 'Does the Commission have the authority to purchase this land without city council approval?'"
We presume that the water and sewer commission was established by ordinance pursuant to KRS 96.190. Cf. OAG 77-694, copy attached. Such commission is not an independent agency with the power to acquire property.
The enclosed ordinance simply gives the city water and sewer commission the power to improve, operate and maintain the system. At the same time the ordinance does state that the title to all property purchased or acquired shall be taken in the corporate name of the city. However, the ordinance does not attempt to transfer the city's power to acquire property to the commission and we seriously doubt if it could legally do so in view of KRS 82.081 which provides that each city is authorized to acquire and dispose of any surplus property which of course can only be done by appropriate ordinance. We refer to McQuillin, Mun. Corps., Vol. 10, Sec. 28.15 from which we quote the following:
"Property may be acquired by a municipal corporation in any recognized manner, subject to the restrictions of its charter and the general laws. The lawful acquisition of title is a prerequisite to the exercise by the municipal corporation of control over property as an owner."
Under Section 28.17 the general rule is pointed out that the restrictions and conditions as to acquiring property as contained in a city's charter and the general law applicable thereto must be observed. Concerning the question of who may act on behalf of a municipality in acquiring title, we quote the following from Section 28.18:
"If the municipal corporation is not limited by law touching the manner of acquiring property, it may act through a duly authorized agent, or through a duly constituted committee. But it should be remembered that in such transactions, as in other corporate acts, there should be no unauthorized delegation of authority. Usually the purchase is made by the duly constituted corporate authority, as by the governing legislative body, which, as we have seen, may act by ordinance or resolution."
The above cited text law in light of the provisions of KRS 82.081 appears to indicate that the city cannot delegate or transfer its statutory right to acquire title to property to any of its departments or agencies. In other words, such authority would only exist with respect to a utility commission where the state legislature has established such commission as an independent agency. Thus we must conclude that the city itself must acquire the property in question by appropriate ordinance.