DISTRICTS ‑- FIRE PROTECTION ‑- PARTICIPATION IN DISTRIBUTION OF FUNDS FROM TAXES ON FIRE INSURANCE PREMIUMS

DISTRICTS ‑- FIRE PROTECTION ‑- PARTICIPATION IN DISTRIBUTION OF FUNDS FROM TAXES ON FIRE INSURANCE PREMIUMS

Fire protection districts having full-time paid fire departments and which established firemen's pension boards and firemen's pension funds are eligible to participate on a pro rata basis with qualified cities and towns in the distribution of 45% of the state taxes on fire insurance premiums pursuant to RCW 41.16.050.

                                                              - - - - - - - - - - - - -

                                                                   April 19, 1961

Honorable Tom Martin
State Treasurer
Legislative Building
Olympia, Washington

                                                                                                                Cite as:  AGO 61-62 No. 23

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Under what circumstances, if at all, may a fire protection district participate in the distribution of portions of the monies received by the state from taxes on fire insurance premiums, as provided for by RCW 41.16.050?

            We answer your question in the manner set forth in our analysis.

                                                                     ANALYSIS

            In 1947 the state legislature, by chapter 91, Laws of 1947, (cf. chapter 41.16 RCW) established a comprehensive relief and pension system for paid municipal firemen.  Previously existing laws (chapter 50, Laws of 1909; chapter 196, Laws of 1919; chapter 86, Laws of 1929; and chapter 39, Laws of 1935) relative to this subject were repealed, though the rights of firemen covered by the prior laws were expressly saved.  See section 12, chapter 91, Laws of 1947 (cf. RCW 41.16.230); Jolly v. Bremerton, 31 Wn. (2d) 873, 199 P. (2d) 587 (1948).

             [[Orig. Op. Page 2]]

            By the express terms of section 1 of this 1947 act (cf. RCW 41.16.010), its applicability was limited to "any person regularly or temporarily . . . employed and paid as a member of a fire department" of a "municipality;" i.e. "everycity and town having a regularly organized full-time, paid, fire department employing firemen."  (Emphasis supplied.)

            By section 2 of this act there was created in each qualified municipality (city or town), for purposes of administration:

            ". . . a Municipal Firemen's Pension Board to consist of, ex officio, the mayor, who shall be chairman of the board, the city comptroller, clerk, the chairman of finance of the city council, or if there is no chairman of finance, the city treasurer, and in addition, two regularly employed firemen elected by secret ballot of the firemen. . . ." (cf. RCW 41.16.020)

            Further, by section 5 of this act, there was created a pension fund in each such qualified municipality (city or town), as follows:

            "There is hereby created and established in the treasury of each municipality a fund which shall be known and designated as the Firemen's Pension Fund, which shall consist of (1) all bequests, fees, gifts, emoluments or donations given or paid thereto, (2) forty-five per cent (45%) of all monies received by the state from taxes on fire insurance premiums, (3) taxes paid pursuant to the provisions of section six (6) hereof, (4) interest on the investments of the fund, (5) contributions by firemen as provided for herein."  (Emphasis supplied.)

            This latter section, with certain amendments to be hereinafter noted, has been codified as RCW 41.16.050 and is, of course, the statute to be closely examined in answering the specific question which you have posed.

            In short, as initially established in 1947, this municipal firemen's relief and pension systemhad no applicability to the firemen of a fire protection district.  See AGO 49-51, No. 402, dated December 19, 1950, to State Representative Daniel W. Giboney, a copy of which is enclosed herein.  Rather this 1947 Act created a comprehensive, integrated, relief and pension systemfor the paid firemen of cities and towns, to be administered at the local level by the board of designated city or town officers and elected local firemen, and to be financed by a locally created and administered fund consisting of (1) bequests, fees, gifts, etc.; (2)a percentage  [[Orig. Op. Page 3]] of monies received by the state from taxes on fire insurance premiums; (3) the local real property tax of one mill per annum; (4) interest on the investments of the fund; and (5) contributions by the participating firemen.

            On the other hand, firemen employed by or serving, as volunteers, in a fire protection district were, with one exception, eligible to participate only in the Volunteer Firemen's Relief and Pension System created by chapter 261, Laws of 1945 (cf. chapter 41.24 RCW), under which the terms "municipal corporation" and "municipality" were each defined to include not only the cities and towns but also fire protection districts and certain other special districts authorized to afford fire protection.  The single exception existed pursuant to § 1 (b), chapter 261, Laws of 1945, which purported to authorize municipalities (including fire protection districts) which maintain a "part-paid" fire department to permit the "full-paid members" of such fire department "to come under the provisions of the Firemen's Relief and Pension Fund provided for in chapter 39, Laws of 1935, or any amendments thereto."  With the abolition of the pre‑1947 municipal firemen's relief and pension system (except for a saving of the rights of members of this system as above noted), even this single qualification became somewhat meaningless.

            Apparently realizing this to be the case, the legislature, in 1955, amended the pertinent portion of § 1, chapter 261, Laws of 1945, to read, ". . . That any such municipality wherein a part-paid fire department is maintained may by appropriate legislation permit the full-paid members of its department to come under the provisions of chapter 41.16 [[chapter 41.16 RCW]]."  Section 1, chapter 263, Laws of 1955 (cf. RCW 41.24.010).  By chapter 41.16, of course, was meant the codification of chapter 91, Laws of 1947,supra.

            At the same time, in 1955, the legislature also amended chapter 91, Laws of 1947, itself, by adding thereto a new section (cf. RCW 41.16.240) reading as follows:

            "Any fire protection district having a full paid fire department may by resolution of its board of fire commissioners provide for the participation of its full time employees in a pension program in the same manner, with the same powers, and with the same force and effect as to such districts as the pension program provided by chapter 41.16 RCW for cities, towns and municipalities, or fire protection districts."  Chapter 46, Laws of 1955.

            This latter 1955 enactment, significantly, was entitled "An Actadopting the provisions of chapter 41.16 RCW as a pension program for full time fire protection district firemen, and adding a new section to chapter 41.16 RCW."  (Emphasis supplied.)

             [[Orig. Op. Page 4]]

            It is to be noted that neither of these two 1955 enactments (§ 1, chapter 263, Laws of 1955, and chapter 46, Laws of 1955, supra) expressly amended so much of chapter 91, Laws of 1947 (i.e., § 1 (9) thereof) as, by definition of the term "municipality", limited the applicability of that act to paid firemen of cities and towns.  Nor was the portion of the 1947 act (cf. RCW 41.16.050, supra) creating local municipal (city and town) firemen's pension funds (made up in part, of a portion of the state tax on fire insurance premiums) expressly amended.  In fact, neither of these two 1955 enactments, while purporting to allow paid firemen of a fire protection district to come under the 1947 municipal firemen's pension system, contains any indication of how this was to be practically accomplished.  No provision was made for the creation of a pension board in such fire protection districts as authorized their paid firemen to come into the 1947 system.  No local firemen's pension fund was created for such fire protection districts, nor was authority to create such a fund expressly granted.  And specifically with regard to the instant question, nothing was expressly done to authorize or direct the state treasurer to distribute to such fire protection districts, along with cities and towns, a portion of the state taxes on fire insurance premiums.

            Manifestly, then, while the intent of the 1955 legislature (to permit the paid firemen of a fire protection district to come into the 1947 municipal firemen's pension system) is clear enough, in terms of the mechanics of administration and financing the paid municipal firemen's pension system at the level of a fire protection district electing to bring its paid firemen into this system, the 1955 legislature must be said to have left much in doubt.

            Prospectively speaking, this doubt has now been removed by the enactment, by the recently completed 1961 legislative session of chapter 255, Laws of 1961.  By § 8 of this act, § 5, chapter 91, Laws of 1947 (cf. RCW 41.16.050, supra, which had previously been amended in 1949, by § 1, chapter 45, Laws of 1949, to provide for the mechanics of distributing the designated forty-five percent of the state taxes on fire insurance premiums to the pension funds of qualified cities and towns) was amended to read as follows (the 1961 amendatory words being underscored):

            "There is hereby created and established in the treasury of each municipality a fund which shall be known and designated as the firemen's pension fund, which shall consist of (1) all bequests, fees, gifts, emoluments or donations given or paid thereto, (2) forty-five percent of all moneys received by the state from taxes on fire insurance premiums, (3) taxes paid pursuant to  [[Orig. Op. Page 5]] the provisions of RCW 41.16.060, (4) interest on the investments of the fund, (5) contributions by firemen as provided for herein.  The forty-five percent of moneys received from the tax on fire insurance premiums under the provisions of this chapter shall be distributed in the proportion that the number of paid firemen in the city, town or fire protection district bears to the total number of paid firemen throughout the state to be ascertained in the following manner:  The secretary of the firemen's pension board of each city, town and fire protection district now or hereafter coming under the provisions of this chapter shall within thirty days after the taking effect of this1961 amendatory act and on or before the fifteenth day of January thereafter, certify to the state treasurer the number of paid firemen in the fire department in such city, townor fire protection district.  The state treasurer shall on or before the first day of March of each year deliver to the treasurer of each city, town and fire protection district coming under the provisions of this chapter his warrant, payable to each city, town or fire protection district for the amount due such city, townor fire protection district ascertained as herein provided and the treasurer of each city, town or fire protection district shall place the amount thereof to the credit of the firemen's pension fund of such city, townor fire protection district."

            In addition, by subsection (13) of section 1, chapter 255, Laws of 1961,supra, the basic term "municipality" was broadened to include not only cities and towns "having a regularly organized full-time, paid, fire department employing firemen," but also "fire protection districts" having such a fire department.

            And finally, by section 11 of this 1961 act there was expressly created in each qualified fire protection district a firemen's pension board, as follows:

            "There is hereby created in each fire protection district which qualifies under this chapter, a firemen's pension board to consist of the following five members, the chairman of the fire commissioners for said district who shall be chairman of the board, the county auditor, county treasurer, and in addition, two regularly employed firemen elected by secret ballot of the firemen.  The first members to be elected by the firemen shall be for a term of one and two years, respectively, and  [[Orig. Op. Page 6]] their successors shall be elected annually for a two year term.  That the two firemen so elected shall, in turn, select a third fireman who shall serve in the event of an absence of one of the regularly elected firemen.  In case a vacancy occurs in the membership of the firemen members, the members of the fire department shall in the same manner elect a successor to serve his unexpired term.  The board may select and appoint a secretary who may, but need not be a member of the board.  In case of absence or inability of the chairman to act, the board may select a chairman pro tempore who shall during such absence or inability perform the duties and exercise the powers of the chairman.  A majority of the members of said board shall constitute a quorum and have power to transact business."

            Consequently it is now clear that henceforth (beginning with the effective date of chapter 255, Laws of 1961, supra), those fire protection districts which maintain full-time, paid, fire departments employing firemen and in which a firemen's pension fund and a firemen's pension board have been created, are to be eligible to share, along with qualified cities and towns, in the distribution of fire insurance premiums tax moneys pursuant to RCW 41.16.050, supra, as amended.

            The eligibility of any fire protection district to share in this distribution prior to the effective date of this 1961 act is not so clear.  As we have previously pointed out, the 1955 legislature, in enacting legislation designed to permit firemen of fire protection districts to come into the paid municipal firemen's pension fund system, failed to expressly spell out the mechanics of administering or financing the system at the level of such a fire protection district.  Recapitulating, by § 1, chapter 263, Laws of 1955 (cf. RCW 41.24.010),supra, the legislature merely authorized those municipalities (including fire protection districts) participating in the Volunteer Firemen's Relief and Pension System (chapter 261, Laws of 1945) and maintaining a "part-paid fire department" to "permit the full-paid members of its department to come under the provisions of chapter 41.16 RCW [cf. chapter 91, Laws of 1947]."  The other pertinent 1955 enactment, chapter 46, Laws of 1955 (cf. RCW 41.16.240),supra, by its title "adopt[ed] . . . the provisions of chapter 41.16 RCW [cf. chapter 91, Laws of 1947] as a pension program for full time fire protection district firemen," and in its body authorized "any fire protection district having a full paid fire department" to provide "by resolution of its board of fire commissioners . . . for the participation of its full time employees  [[Orig. Op. Page 7]] in a pension program in the same manner, with the same powers, and with the same force and effect as to such districts as the pension program provided by chapter 41.16 RCW [cf. chapter 91, Laws of 1947] for cities, towns and municipalities, or fire protection districts."  (Emphasis supplied.)

            We must, of course, give some positive effect and meaning to these two statutes if it is possible to do so.  Public Hosp. Dist. v. Taxpayers, 44 Wn. (2d) 623, 269 P. (2d) 594 (1954), and cases cited therein.  Consequently, after considerable reflection on the matter, we have reasoned and concluded as follows:

            (1) By reference to the language of the above quoted portion of chapter 263, Laws of 1955 (cf. RCW 41.24.010), supra, and to the language of chapter 46, Laws of 1955 (cf. RCW 41.16.240),supra, together with its title (to be resorted to for a determination of legislative intent in the case of ambiguity in the body of an act) (seeAyers v. Tacoma, 6 Wn. (2d) 545, 108 P. (2d) 348 (1940), and cases cited therein) we believe it was the intention of the 1955 legislature to authorize those fire protection districts having paid firemen to permit those paid firemen to enter the paid municipal firemen's pension system.

            (2) Given this intention, the authority to create a local pension board (for purposes of administration) and a local pension fund (for purposes of financing) is to be implied on grounds of necessity in order to give effect to the legislature's intent.  State ex rel. Hunter v. Superior Court, 34 Wn. (2d) 214, 208 P. (2d) 866, (1949), and cases cited therein.

            (3) Given the authority to create by appropriate local legislation a local pension board and a local pension fund, it follows that the legislature must have intended, in order to finance the pension system at a qualified local fire protection district level, to entitle such fire protection districts as have in fact created local boards and local funds to receive, inter alia, a pro rata share of the forty-five percent of state taxes on fire insurance premiums earmarked by RCW 41.16.050,supra, for the support of the paid municipal firemen's pension system.

            In the face of this conclusion it follows that the purpose of the 1961 legislature, in expressly amending RCW 41.16.050, supra, and in creating a firemen's pension board in qualified protection districts (§ 11, chapter 255, Laws of 1961, supra) was not to alter the substance of its previous enactments but merely to make clear what previously was doubtful; namely, the authority of a fire protection district having a full-time, paid, fire department to effectively bring its paid firemen into the paid municipal firemen's pension system established by chapter 91, Laws of 1947, as well as by chapter 382, Laws of 1955.

             [[Orig. Op. Page 8]]

            In summary, then, in our opinion those fire protection districts having full-time, paid, fire departments, in which have been created or established firemen's pension boards and firemen's pension funds (either under the express authority of sections 1 and 8 of chapter 255, Laws of 1961, or by implied authority from chapters 46 and 263, Laws of 1955) are eligible to participate on a pro rata basis with qualified cities and towns in the distribution of forty-five percent of the state taxes on fire insurance premiums, pursuant to RCW 41.16.050, supra.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

PHILIP H. AUSTIN
Assistant Attorney General