DISTRICTS - FIRE PROTECTION - OWNERSHIP OF STATION, EQUIPMENT AND REAL PROPERTY WHERE A PORTION OF THE DISTRICT IS ANNEXED TO A CITY OR INCORPORATED AS A MUNICIPALITY OR IS WITHDRAWN FROM THE...

DISTRICTS - FIRE PROTECTION - OWNERSHIP OF STATION, EQUIPMENT AND REAL PROPERTY WHERE A PORTION OF THE DISTRICT IS ANNEXED TO A CITY OR INCORPORATED AS A MUNICIPALITY OR IS WITHDRAWN FROM THE DISTRICT UNDER CHAPTER 237, LAWS OF 1959.

(1) A municipality owns the fire station, equipment and real property (a) when the municipality annexes all or a portion of a fire protection district wherein such property is located; (b) when an area comprising a portion of a fire protection district wherein such property is located incorporates as a municipality; and (c) when a municipality, or portion thereof, wherein such property is located is excluded from a fire protection district pursuant to section 6, chapter 237, Laws of 1959.

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                                                                November 6, 1959

Honorable Donald H. Webster
Director, Bureau of Governmental
Research and Services
University of Washington
266 J. Allen Smith Hall
Seattle 5, Washington                                                                                        Cite as:  AGO 59-60 No. 82

Dear Sir:

            By letter previously acknowledged you requested an opinion of this office concerning certain questions involving chapter 237, Laws of 1959, which provides for the separation of municipalities from fire protection districts.  We paraphrase your questions as follows:

            (1) Who owns the fire station, equipment and real property:

            (a) When a municipality annexes all or a portion of a fire protection district wherein such property is located;

            (b) When an area comprising a portion of a fire protection district wherein such property is located incorporates as a municipality;

            (c) When a municipality or a portion thereof wherein such property is located is excluded from  [[Orig. Op. Page 2]] a fire protection district on January 1, 1960, pursuant to § 6, chapter 237, Laws of 1959?

            Subject to certain restrictions and qualifications set forth in the analysis, title to the property vests in the municipality if such property is located within the boundaries of the municipality.

                                                                     ANALYSIS

            Question 1 (a) is answered by the following statutory provisions:

            RCW 35.13.220 provides as follows:

            "Whenever any territory which includes all the territory of a water, sewer orfire protection district, hereinafter referred to as 'the district, 'has been heretofore or is hereafter annexed to a city or town, all real and personal property, franchises, rights, assets, taxes levied but not collected for the district for other than indebtedness, water or sewer lines,facilities, or equipment of the district shall become the property of a city or town to which annexation is made, . . . subject, however, to any outstanding indebtedness, bonded or otherwise, of the district, . . ." (Emphasis supplied)

            RCW 35.13.230 provides that:

            "If only a portion of the territory of any such district is annexed to the city, all real estate, facilities, installations or equipment belonging to the district within the annexed territory which are exclusively used for or by the annexed territory, together with a portion of the assets or funds of the district equal to the proportion which the assessed valuation of the real estate of the district located inside the city bears to the total assessed valuation of the real estate of the district,shall belong to the city, subject to the debts and obligations of the district for which such real estate, facilities, installations or equipment, assets or funds would have been liable if no annexation had been made; . . .  If only a portion of any such district is annexed, and there shall be located in the territory annexed any real estate, facilities, installations or equipment which are used exclusively for  [[Orig. Op. Page 3]] service to real estate not annexed to the city, the district shall have the right to continue to use such real estate, facilities, installations or equipment . . . in the same manner as if the annexation had not been made."  (Emphasis supplied)

            RCW 35.13.240 provides:

            "If a portion of the district is located outside the city and a portion inside, with no facilities or services used exclusively for territory outside or exclusively for territory inside the city, the real and personal property, water or sewer mains, facilities or equipment located within the annexed territory, and all assets and funds of the district in proportion to the assessed valuation of the real estate located inside and outside shall belong to the city;. . ." (Emphasis supplied)

            Since the question here involved deals only with the transfer of title to the property of the district, certain inapplicable portions of the above statutes have been deleted.  These statutes also contain certain restrictions and qualifications, including provisions that the property so transferred shall remain liable for pre existing [[preexisting]]debts of the district, but they do not in any manner affect the question of the transfer of title itself.

            Although RCW 35.13.220 specifically refers to a "city or town," whereas RCW 35.13.230 and 35.13.240 only refer to a "city," we believe the legislature intended to include within the term "city," in the latter two statutes, a city of the fourth class, i.e., a town.  See the opinion of this office issued on December 5, 1951, to Representative Hansen (AGO 51-53-186).  The above statutes being inpari materia, relating to the same subject matter, must be construed together.  Such statutes are intended to be consistent and harmonious in their several parts and provisions.  State v. Houck, 32 Wn. (2d) 681, 203 P. (2d) 693 (1949).

            Therefore, when a municipality annexes all or a portion of the area of a fire protection district, the property situated within this area and previously owned by the district becomes the property of the annexing municipality, subject to certain restrictions and qualifications heretofore mentioned.

            In passing, it may be well to note RCW 35.13.250, which provides that:

            "Notwithstanding the provisions of RCW 35.13.220 to 35.13.270 inclusive, the city may, through its legislative authority authorize a contract with the district, with respect to rights, duties and obligations of the city and the district as to ownership of  [[Orig. Op. Page 4]] property, services, assets, liabilities and debts and any other questions arising out of the annexation, which contract may also make provisions for services by the district and use of its facilities or real estate within the city, and which contract may also provide that for such time as the contract may provide such district may continue to exercise all rights, privileges, powers and functions of such district provided by law as if there had been no annexation, including but not by way of limitation the right to levy and collect special assessments, adopt and carry out the provisions of a comprehensive plan, or amendments thereto, for a system of improvements, and issue and sell revenue and general obligation bonds."

            Questions 1 (b) (c).

            We find no statutory provisions dealing specifically with the question of transfer of title to property here involved where (b) a portion of a fire protection district incorporates as a municipality; or (c) where a municipality, already existing within a fire district, is automatically removed pursuant to § 6, chapter 237, Laws of 1959.  The statutes previously quoted all deal with annexation, with which we are not here concerned.

            Since there are no statutory provisions, we must look to the common law because RCW 4.04.010 provides:

            "The common law, so far as it is not inconsistent with the Constitution and laws of the United States, or of the state of Washington nor incompatible with the institutions and condition of society in this state, shall be the rule of decision in all the courts of this state."

            The common law rule is aptly stated in Town of Cassian v. Town of Nokomis, 254 Wis. 94, 35 N.W. (2d) 408, 410 (1948):

            "At common law when a new town was created out of an old town it had no claim to portion of the common property except what fell within its boundaries.  26 R.C.L. 792, Town of DePere v. Town of Bellevue, 31 Wis. 120, 11 Am.Rep. 602.  Conversely the old town remained subject to all its obligations unless, of course, there was express statutory provision to the contrary. . . ."

            Also in the case ofCity of Wellington v. Township of Wellington, 46 Kan. 213, 26 Pac. 415, 418 419 (1891), the court stated:

             [[Orig. Op. Page 5]]

            ". . . This inquiry arises in this state of facts:  When a city of the second class is created out of the territory of a municipal township, and the public property of the township is situated within the boundaries of such city, which municipality owns the property?  In the absence of legislative regulation, the presumption is that the legislature did not consider that any regulation was necessary.  Mount Pleasant v. Beckwith, 100 U.S. 514.  It is said in this case: 'Where there is no legislation on the subject, the old corporation owns all the public property within its limits, and is responsible for all debts of the corporation contracted before the separation, nor has the new municipality any claim to any portion of the public property except what falls within its boundaries, and to that the old corporation has no claim whatever,' . . .

            ". . . It may be fairly said that in every case in which the question was a controlling one, and it was free from statutory control, it has been held that, in cases of a new and different municipality carved out of a municipal township, the public property falling within its limits belongs to the new."

            Therefore, applying the common law rule in situations covered by questions 1 (b) and (c), title to the property located within the boundaries of the municipality which is withdrawn from the fire district, will vest in the municipality excluded from such fire protection district.

            In passing, it may be well to note that § 8, chapter 237, Laws of 1959, modifies the common law rule.  This section provides as follows:

            "A city or town encompassing territory withdrawn under the provisions of chapter 52.22 RCW shall determine the most effective and feasible fire protection for the withdrawn territory, or any part thereof, and the legislative authority of the city or town and the commissioners of the fire protection district may, without limitation on any other powers provided by law:

            "(1) Enter into contracts to the same extent as fire protection districts and cities and towns may enter into contracts under authority of RCW 52.08.030 (3), and

             [[Orig. Op. Page 6]]

            "(2) Sell, purchase, rent, lease, or exchange property of every nature."

            Also, the legislature provided that such property withdrawn from a fire district, as opposed to annexation, should remain liable for pre existing indebtedness by providing in § 7, chapter 237, Laws of 1959, the following:

            "The provisions of RCW 57.28.110 shall apply to territory withdrawn from a fire protection district under the provision of chapter 52.22 RCW."

            Accordingly, RCW 57.28.110 is applicable to territory withdrawn from the district.  That section provides:

            "Any and all taxes or assessments levied or assessed against property located in territory withdrawn from a water district [fire district] shall remain a lien and be collectible as by law provided when such taxes or assessments are levied or assessed prior to such withdrawal or when such levies or assessments are duly made to provide revenue for the payment of general obligations or general obligation bonds of the water district [fire district] duly incurred or issued prior to such withdrawal."

            Therefore, in both instances, whether the property be withdrawn by virtue of incorporation or by automatic withdrawal pursuant to § 6, chapter 237, Laws of 1959, such property remains liable for the outstanding indebtedness, bonded or otherwise, of the district.

            We trust the foregoing will be of some assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

RICHARD M. MONTECUCCO
Assistant Attorney General