Opinion No. 36-71

Topics:

AMBULANCES.
FIRE PROTECTION DISTRICTS.

Summary conclusion

1. A fire protection district which establishes an emergency ambulance service cannot charge for the use of the service. 2. It does not make any difference if the person in need of such service is a resident or nonresident of the fire protection district, he is entitled to such service.

January 8, 1971
WITHDRAWN

Honorable Robert H. Branom
State Representative
District No. 35
State Capitol Building
Jefferson City, Missouri 65101

Dear Representative Branom:

This is in response to your request for an opinion from this office as follows:

"I am writing at the request of a constituent concerning sections 321.255 and 321.620. Can fire districts under these sections which establish emergency service based on collection of taxes on real property subsequently charge people for the ambulance service. Would it make any difference if the person was a resident or non-resident of the fire district."

This opinion request concerns an ambulance service established under Section 321.225, RSMo, which'provides'as follows:

"1. A fire protection district may, in addition to its other powers and duties, provide emergency ambulance service within its district if a majority of the voters voting thereon approve a proposition to furnish such service and to levy a tax not to exceed five cents on the one hundred dollars assessed valuation to be used exclusively to supply funds for the operation of an emergency ambulance service. The district shall exercise the same powers and duties in operating an emergency ambulance service as it does in operating its fire protection service.

"2. The proposition to furnish emergency ambulance service may be submitted by the board of directors at the next annual election of the members of the board or at a special election called for the purpose, or upon petition by five hundred duly qualified electors of such district. A separate ballot containing the question shall read as follows:

Shall the board of directors of ________ Fire Protection District be: authorized to provide emergency ambulance service within the district and be authorized to levy a tax not to exceed five cents on the one hundred dollars assessed valuation to provide funds for such service?.

For emergency ambulance service and the levy

Against emergency ambulance service and the levy

(Place an X in the square opposite the one for which you wish to vote.)

If a majority of the qualified voters casting votes thereon be in favor of emergency ambulance service and the levy, the district shall forthwith commence such service.

"3. As used in this section, 'emergency' means a situation resulting from a sudden or unforeseen situation or occurrence that requires immediate action to save life or prevent suffering or disability."

In Opinion No. 438 issued by this office on October 28, 1970, enclosed herewith, we ruled that when an emergency ambulance service is established under the above statute, the service must be furnished for the entire district not for just a portion of such district.

You inquire whether a fire protection district in which an ambulance service is established may charge the person who uses the service and whether such service is limited to residents of the district.

It is our view that a fire protection district established under the provisions of Chapter 321, RSMo, is similar to a special road district or drainage district in that they are municipal corporations and political subdivisions of the state with only such powers and authority as is expressly given them by statute and that which is necessarily implied in executing that which is expressly given. Section 321.010, RSMo; State ex rel. Little Prairie Special Road Dist. of Pemiscot County vs. Thompson, 285 S.W. 57, 315 Mo. 56; Lamar vs. Bolivar Special Road Dist., 201 S.W. 890; Thompson vs. City of Malden, 118 S.W.2d 1059.

Under Section 321.225, supra, if a majority of the voters voting thereon in a fire protection district vote to furnish emergency ambulance service in the district with the tax levy as submitted, the district "shall. forthwith commence such service." Under this statute, if emergency ambulance service is voted by the voters in the district, it is mandatory that the board of directors of the district immediately establish such service. Attention is also called to the fact that a special tax levy must be voted for such purpose.

The question then arises as to the authority of a fire protection. district to demand compensation of an individual for a service that is required to be furnished and for which a special tax has been voted by the voters in the district for such service.

We have been unable to find any court decision in this state passing on this question. There is no doubt that the legislature by statute could provide a service charge in addition to the tax levy, or could authorize fire protection districts to exact a service charge in addition to the tax levy. A statute authorizes any county, city, town or village to provide a general ambulance service and fix a schedule of fees or charges to be paid by persons for the use of such service. Section 67.300, RSMo.

In the case of City of Maryville vs. Cushman, 249 S.W.2d 347, the right of the City of Maryville to collect a service charge for sewer service was before the court. In this case the expense for the construction of the, original sewer system had been raised by benefit assessment against the property, and the question was whether the city had a right to charge additional compensation for such service. In discussing this matter, the court stated 1.c. 353:

"Section 250.120 specifically provides that such charges for sewerage system use shall be made 'regardless of whether or not the services of the (sewerage) system shall previously have been rendered without charge therefor by the previously existing sewerage system * * * and regardless of how the acquisition of such system shall have been financed,' etc. This exact question was before the Court and was ruled in Carson v. Sewerage Commissioners of City of Brockton; 175 Mass. 242, 56 N.E. 1, 48 L.R.A. 277; Id., 182 U.S. 398, 21 S.Ct. 860, 45 L.Ed. 11051;43' Benson v. Andalusia, 240 Ala. 99, 195 City of Wichita Falls v. Landers, Tex.Civ.App., 291 S.W. 696; Opinion of the Justices, 93 N.H. 478, 39 A.2d 765; Grim v. Village'of Lewisville, 54 Ohio App. 270, 6 N.E.2d 998; and Freeman v. Jones, 189 Ark. 815, 75 S.W.2d 226. Authorities upholding the right of municipalities to levy a charge for the use of the city sewerage system could be multiplied. But the above are sufficient. The rule of the above cited cases is that the original construction of a sewerage system does not bind the city to forever maintain it from general taxation, nor may it be implied that a citizen may forever use the sewerage system without charge, and that a charge may therefore be made for the use of the sewerage facility, 'a benefit distinct from that originally conferred by building it.' The respondent city by heretofore maintaining its sewerage system through taxation did not impliedly or otherwise bind itself never to charge for its use. Such sewerage charges are but charges for a service rendered. They are in no sense taxes. See cases last above cited, and Am. Juris. Taxation, Sec. 3, p. 35, Sec. 16, p. 48, and Louisville & Jefferson County Metropolitan Sewer Dist. v. Joseph E. Seagram & Sons, 307 Ky. 413, 211 S.W.2d 122, 4 A.L.R.2d 588. The 1951 Act in Section 250.120 makes it the mandatory duty of a city which issues such revenue bonds 'to fix and maintain rates and make and collect charges for the use and services of the (sewerage) system', etc. And it is of no consequence whatever that the city had theretofore exacted no service charge for the use of such system. This contention is without merit and must be denied."

In the above case the court calls attention to the fact that a statute expressly provides for the city to charge for the use of the city sewers regardless of whether or not service charges had previously been made and regardless of how this system had been originally financed.

We have found no statute authorizing a fire protection district to demand a service charge from an.individual for the use of the ambulance services provided for under Section 321.225, supra.

In McQuillin on Municipal Corporations, Volume 10, paragraph 29.08, page 247-248, it is stated:

"A city may not enter into a contract under which it exacts compensation from a citizen for the performance of a public duty imposed on it by law, either expressly or by implication. For example, a city could not for compensation agree to keep open and unobstructed a street, to furnish within the municipal limits police or fire protection, or sewerage service. It has been held that a contract by county commissioners with a guardian of an insane person to take care of him in the county asylum is invalid, and no recovery can be had on an implied contract, where it is the duty of the county to care for such persons free of charge. . . ."

In State ex rel. State Highway Commission v. Union Electric Co. of Missouri, 142 S.W.2d 1099, the State Highway Commission sought to recover eight hundred dollars per year from the Union Electric Company upon a contract whereby the Union Electric Company agreed to pay for its electric power lines on the State Highway bridge at St. Charles, Missouri. The court denied recovery because a statute expressly provides a public utility the right
to use of public highway for its poles, lines, etc. In discussing this matter, the court stated at l.c. 1102:

"In support of its contention that it has been impliedly granted the power it seeks to exercise, plaintiff cites, by way of alleged analogy, that line of decisions which affirm the right of a municipal corporation to impose a charge in the nature of a rental upon a public utility which appropriates space in he streets and alleys of the city as the location for its poles and other fixtures. The trouble is that in attempting to draw such analogy, plaintiff ignores the vital difference between the power of a city in such respect and the power which it itself possesses. The consent of a municipality is a condition precedent to the right of a utility to make use of the streets and alleys of the municipality in the operation of its business (State ex inf. v. ArkansasMissouri Power Co., 339 Mo. 15, 93 S.W.2d 887; State on inf. v. Missouri Utilities Co., supra); and since this is so, and since the requisite permission may be withheld, when a municipality once permits the exclusive appropriation of a portion of its streets and alleys, it may then in turn exact compensation in the nature of rental for the space thus occupied by the utility to the absolute exclusion of the rights of the general public. Not so, however, in the case of the commission, which is expressly denied the right to exclude the lines and appurtenances of public utilities from the units of the state highway system, and which must therefore be held to lack the right to impose a charge for the exercise of a privilege which it has neither the power to grant or to prevent. State ex rel. v. Kansas City Power & Light Co., supra."

The court held that since a public utility has the right by statute to use the public highway for its poles, lines, etc., the State Highway Commission was without authority to collect compensation from the utility for exercising a right which was given them by law.

In Ballard's Estate vs. Clay County, 355 S.W.2d 894, the court had before it a contract which had been entered into between that individual and Clay County by which the individual agreed to pay Clay County $10,000 for his support and maintenance at the county home for the rest of his life. He paid the $10,000 and lived at the county home for approximately four years until his death. This was a suit by his administrator to recover the $10,000, after deducting the reasonable value of the services the county had furnished the deceased while living at the home. After referring to the statutes which require the county to support poor persons, and which provide that the county may maintain a county home for the poor, the court stated l.c. 897:

"It seems clear from the statutes referred to in the preceding paragraph that the county was authorized to maintain and operate a poorhouse in order to provide a residence for poor persons, i. e., persons unable to support themselves. No statute or case has been cited which indicates that the county was authorized to operate its poor farm as an inn or nursing home to be used as a residence by persons (such as Mr. Ballard) who were able to pay (and would pay) the county an agreed amount for the privilege of residing therein. We have searched the statutory and case law of this state and find no authority for the county to conduct a business enterprise of that nature. It is an established rule that the 'authority of a county board to make contracts is strictly limited to that conferred,, either expressly or impliedly, by statute, regardless of benefit to the county or of value received * * *.' 20 C.J.S. Counties § 174, pp. 1006, 1007. Also, as provided in Section 3349, supra, counties are expressly prohibited from making any contract unless within the scope of its powers or expressly authorized by law. The instant contract, being unauthorized, was ivoid. See cases cited in annotations to Section 432.070, V.A.M.S., supra; State ex rel. Eubanks v. Board of Commissioners of Sedgewick County, 150 Kan. 143, 91 P.2d 2; Bradford County v. Nuveen., 5th Cir., 133 F.2d 169. Said void contract provides no protection to Clay County in the retention of the money paid by Mr. Ballard. And that is true even though the contract is not set aside. Benton County v. Morgan, 163 Mo. 661, 64 S.W. 119; Faris v. Moore, 256 Mo. 123,. 165 S.W. 311. The county, having obtained the money under a void contract, can be required to make restitution. It has been said that 'the obligation to do justice rests upon all persons, natural and artificial, and if a county obtains the money or property of others without authority, the law, independent of any statute, will compel restitution * * *.' Marsh v. Fulton County, 10 Wall. 676, 19 L.Ed. 1040, 1043."

We believe the principles of law discussed in the above opinions apply to the present facts. It is our view that if the voters in a fire protection district organized under Chapter 321, RSMo, vote to establish an emergency ambulance service, it is mandatory for the directors of the fire protection district to immediately establish such service. Since this service is required to be furnished and there is no statute authorizing the collection of a service charge from an individual for the use of such service, such service must be made available without charge.

In answer to your question whether it would made any difference if the person was a resident or nonresident of the district, it is our view that it does not. We believe any person within the boundaries of the fire protection district in need of emergency ambulance service is entitled to such service without regard to his residence. The statute does not restrict such service to residents of the district. Laws are for the benefit and protection of all persons whether citizens, inhabitants, transients, visitors or sojourners who are properly within the borders of the state unless otherwise declared. Without passing on whether the emergency ambulance service could have been restricted to residents of the fire protection district, by statute, it is not so restricted. It is our view that any person within the borders of a fire protection district in need of emergency ambulance service is entitled to such service. Head vs. New York Life Ins. Co., 241 Mo. 403, 147 S.W. 827.

CONCLUSION

It is the opinion of this office that:

1. A fire protection district which establishes an emergency ambulance service cannot charge for the use of the service.

2. It does not make any difference if the person in need of such service is a resident or nonresident of the fire protection district, he is entitled to such service.

The foregoing opinion, which I hereby.approve, was prepared by my Assistant, Moody Mansur.

Very truly yours,

John C. Danforth
Attorney General