Mayor of Eminence v. Wilson

JUDGE BURNAM delivered the opinion oe the court. This appeal is prosecuted by the city of Eminence from a judgment rendered in a suit instituted by citizens and taxpayers of the city to enjoin the payment of money appropriated by the city council for the purpose of aiding and having a common school taught in Common School District No. 32 for a full year. The school district includes a large territory and a large number of children who do not reside within the corporate limits of the city of Eminence, and who derive equal benefit with the citizens of the city from the school taught in the district. The money appropriated is a part of the funds arising from licenses'to retail liquor. Charters of cities of the fifth class make no provision for public education or the establishment of schools therein, and it follows that matters connected with this subject are controlled either by the provisions of the common school law or by old charters under which they were governed at the time of the passage of the common school law (see section 1133 Ky. Stats., and Roberts v. Clay City, 19 Ky. Law Rep., 1017). By section 1157 Ky. Stats., power is given to common school districts to supplement the State aid to common schools therein, by levying a special tax on the whole district. By section 3616 Ky. Stats., which is a provision oí [329] charters of cities of the fifth class, it is provided that all moneys received from licenses, etc., are to be paid into the general fund of the city, and in construing this provision this court has said that this section operates to repeal local acts requiring all or part of the license fees for the privilege of selling liquor in such city to be paid to the board of education thereof. (See City of Hawesville v. Board of Education, 14 Ky. Law Rep., 408.) Appellant contends that it is within the scope of the implied powers of a municipal corporation to make provisions for public education by an appropriation of the general funds of the city for that purpose, and that it may do this independently of, and in addition to, the authority vested in the common school district, of which it forms a part, to make such provision. It is a well-settled rule of construction of grants by a Legislature to corporations, whether public or private, that only such powers and rights can be exercised under them as are clearly comprehended within the words of the act or derived therefrom by fair and reasonable implication, or are necessary to carry into effect the rights and powers so granted. This was the rule announced by this court in the case of Henderson v. City of Covington, 14 Bush, 312, and Patton v. Stephens, 14 Bush, 324. In the latter case, the court, in speaking of an ordinance passed by the city of Covington authorizing the mayor of the city to offer a reward for the arrest of a city treasurer who had been indicted for embezzling the funds of the city, the payment of which had been enjoined at the sJiit of tax payers, said: “The question before us is one330 of power, not of expediency. ... It will not do to say that a municipal corporation has power to do an act or ■expend the city revenue because the thing done or to accomplish which the fund was expended can be shown to tend in some degree to benefit the city. Such a method of ascertaining the powers of corporate bodies would expand their authority far beyond legitimate bounds. Such a rule has not been, and can not, with safety, be adopted.” And Mr. Dillon, in his work on municipal corporations (4th edition, section 89), says: “It is a general and undisputed proposition of law that a municipal corporation possesses the following powers, and no others: First, those granted in express words. Second, those necessarily or fairly implied or incidental to the powers expressly granted. Third, those essential to the declared objects and purposes of the corporation not simply convenient and indispensable. And any fair and reasonable doubt concerning the existence of a power is resolved by the courts against the corporation, and the the power is denied. Neither the corporation nor its officers can do any act or make any contract or incur any liability not authorized thereby, or by some legislative act applicable thereto; and all acts beyond the scope of the powers granted are void.” The fact that the Legislature has expressly delegated to cities of the first, second, third and fourth classes power to provide for public education therein and has failed to confer this power upon cities of the fifth and sixth classes, plainly indicates that it was the intention that these municipalities should be controlled by the [331] provisions of tlie common school law on this subject. Especially does this appear to be so when they constitute but a portion of the common school district in which they are situated. The fact that private individuals living within the common school district, and without the corporate limits of the city, make liberal donations for the purpose of aiding the common school district, does not authorize the city council to donate' the general funds of the city to that purpose. Wherefore, the judgment is affirmed.