No. ( 1980 )

Honorable Mary Estill Buchanan Colorado Secretary of State 1575 Sherman Street, 2d Floor Denver, CO

Dear Ms. Buchanan:

I am writing in response to your October 31, 1980 request for an attorney general's opinion on the question of filing articles of incorporation for a fire protection district.

QUESTION PRESENTED AND CONCLUSION

You have asked the following question:

Does C.R.S. 1973, 32-5-309 require that a fire protection district file its articles of incorporation with the secretary of state?

No. It is my opinion that a fire protection district is required to file its articles of incorporation with the county clerk and recorder of that district, but not with the secretary of state.

ANALYSIS

C.R.S. 1973, 32-5-309 provides as follows:

32-5-309. Filing decree. Within thirty days after the district has been declared a corporation by the court, the clerk of the court shall transmit to the county clerk and recorder, in each of the counties in which the district or a part thereof may be or extend, copies of the findings and the decree of the court incorporating the district. The findings and decree shall be filed in the same manner as articles of incorporation are required to be filed under the general laws concerning corporations. The clerk and recorder in each county shall receive a fee of one dollar for filing and preserving the same.

That section was enacted as part of the Fire Protection District Act of 1949.

The language of that section refers several times to the county clerk and recorder as the filing officer for the incorporation papers of a fire protection district. The finding and decree of incorporation are to be transmitted directly to the county clerk and are to be filed and preserved in the clerk's office for a fee of one dollar. No mention is made of any filing to be made with the secretary of state.

While the language requiring filing "in the same manner as articles of incorporation are required to be filed under the general laws concerning corporations" might be literally interpreted to require that the findings and decree of such districts be filed with the secretary of state under C.R.S. 1973, 7-2-103, it is my opinion that such an interpretation is not reflective of the legislative intent in creating such districts. A more reasonable interpretation of section 32-5-309 is that similar filing procedures are to be followed rather than a requirement of filing in the same place.

The Fire Protection District Act of 1949 was adopted to provide fire protection to the residents of areas who wished to establish such quasi-municipal corporations. At the time that this section was enacted by the legislature, the "general laws concerning corporations" provided as follows:

The original of the certificate shall be filed in the office of the secretary of state, and certified copies of the certificate of incorporation shall be filed in the office of the clerk and recorder of any county of this state in which said corporation shall own real estate.

1935 Colo. Sess. Laws, vol. 2, ch. 41, § 7.

Therefore, under the corporation laws in existence at the time the fire protection district statutes became law, both the secretary of state and the county clerks and recorders acted as filing officers for Colorado corporations. Read in this historical context, the language of C.R.S. 1973, 35-5-309 should be interpreted to provide as follows: That copies of the findings and decree organizing the district shall be transmitted to the county clerk and recorder, and those copies shall be filedwith the county clerk and recorder as that officer would have filed general incorporation papers under prior law. In addition, the last sentence of C.R.S. 1973, 32-5-309, concerning a fee to be paid to the county clerk and recorder for the cost of filing the findings and decree implies that they are indeed to be filed with that officer and not with the secretary of state.

Finally, the Colorado Corporations Code provides, in C.R.S. 1973, 7-1-103(1) that:

(1) Corporations may be organized under this code for any lawful purpose; except that, where another statute of Colorado requires that corporations of a particular class shall be organized exclusively thereunder, corporations of that class shall be organized under such other statute.

The Fire Protection District Act of 1949, C.R.S. 1973, 32-5-301et seq. creates and provides in detail the exclusive method for incorporating a quasi-municipal corporation known as a fire protection district. A quasi-municipal corporation, such as a fire district, could not be organized under the general incorporation laws, and thus, general incorporation laws are inapplicable here. It is my opinion that this Act does not require filing incorporation papers with the secretary of state, in the same manner as a corporation and that the general corporation laws are not applicable to a quasi-municipal corporation whose means of incorporation are clearly set forth under another provision of law.

SUMMARY

To briefly summarize my opinion, C.R.S. 1973, 32-5-309 requires that the findings and decree of the court incorporating a fire protection district shall be filed with the county clerk and recorder, and does not require such documents to be filed with the secretary of state.

Very truly yours,

J.D. MacFARLANE Attorney General

SPECIAL DISTRICTS FIRE DEPARTMENTS

C.R.S. 1973, 32-5-309 C.R.S. 1973, 32-5-301 C.R.S. 1973, 7-1-103(1)

SECRETARY OF STATE DEPT. Administration

Fire Protection Districts must file in corporation papers with the County Clerk and Recorder, not the Secretary of State.