Judges: WILLIAM L. WEBSTER
Filed Date: 2/22/1985
Status: Precedential
Modified Date: 7/5/2016
Dear Representative Ward:
This opinion is in response to your questions asking:
(1) May a third class city furnish fire protection outside the city limits, and if so, to whom?
(2) Can cities enter into mutual aid agreements with fire service organizations that are not statutory fire districts or incorporated cities, such as voluntary fire service organizations?
Your opinion request indicates that you are concerned with the City of Farmington; the City of Farmington is a third class city with the mayor-council form of government.
The controversy appears to involve the validity of Farmington City Code Section 29-125, which states:
For all persons who are being furnished water by the city and living outside the city limits, the city shall furnish all the usual and available fire protection therefor without the usual described fees paid by non-residents of the city. However, the priorities for the use of the city fire equipment and crews shall remain the same with top priority for fire protection to be given to the residents of the city.1
This ordinance provides residents of the City of Farmington priority in fire services. Apparently, the City Council of Farmington has arrived at the "priority service" provision as a way of allocating the City's limited fire protection services. We assume that such a limitation is valid.
I. Extraterritorial Fire Protection Services A. Constitutional Charter Cities
In Miller v. City of St. Joseph,
Any city which adopts or has adopted a charter for its own government, shall have all powers which the general assembly of the state of Missouri has authority to confer upon any city, provided such powers are consistent with the constitution of this state and are not limited or denied either by the charter so adopted or by statute. Such a city shall, in addition to its home rule powers, have all powers conferred by law.
Such powers are sometimes referred to as "residual powers"; meaning, constitutional charter cities have all residual powers not prohibited to them. Section 5.7 of the Charter of the City of St. Joseph required the city to provide fire protection services within the City of St. Joseph. Section 2.13(20) of the Charter of the City of St. Joseph provided that the City had the power to "[d]o all things whatsoever necessary or expedient for promoting and maintaining the comfort, education, morals, safety, peace, government, health, welfare, trade, commerce, or industry of the City and its inhabitants."
Testimony at the trial showed that the City had an oral understanding to provide fire protection services to the members of the Stockyards Association. The Stockyards Association made an advance annual contribution of seventeen thousand five hundred dollars ($17,500.00), and members of the Stockyards Association agreed to pay fifty dollars ($50.00) per fire call into the Firemen's Pension Fund. Testimony also showed that the City agreed to provide fire protection services to four residential subdivisions outside the City containing approximately six hundred and fifty (650) houses; the subdivision construction contractor or the home associations were to pay the City fifty dollars ($50.00) per hour for each fire call.
The court noted that the combustible nature of the stockyards' facilities constituted a threat of the spread of fire to buildings within the city limits, but immediately adjoining the stockyards; that if the stockyards burned, many inhabitants of the City would be unemployed; and that many of the people who reside in the four residential areas are employed in the City, and the economic loss by fire to such people would affect the City. Accordingly, the court concluded that the City had the authority under Section 2.13 (20) of the City Charter to protect the safety, health, welfare, and commerce of the City by providing extraterritorial municipal fire protection services.
B. Statutory Class Cities
In contradistinction to the residual powers approach applicable to constitutional charter cities, third class cities with the mayor-council form of government are governed by the "Dillon" rule, named after Judge Dillon, who wrote a treatise on municipal corporations.
The Dillon rule is municipal corporations possess only those powers expressly granted to them, those powers implied in or incidental to those expressly granted them, and those powers essential to the municipality. Any reasonable doubt as to whether a power has been delegated to a municipality is resolved in favor of non-delegation.Anderson v. City of Olivette,
Section
The mayor and council of each city governed by this chapter shall have the care, management and control of the city and its finances, and shall have power to enact and ordain any and all ordinances not repugnant to the constitution and laws of this state, and such as they shall deem expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, and the health of the inhabitants thereof, and such other ordinances, rules and regulations as may be deemed necessary to carry such powers into effect, and to alter, modify or repeal the same. [Emphasis added.]
The above emphasized portion of this statute contains a "general welfare" clause (the "expedient for the good government of the city, the preservation of peace and good order, the benefit of trade and commerce, and the health of the inhabitants" language) and a "residual powers" provision (the "all ordinances not repugnant to the constitution and laws of this state" language).
The courts have held that "general welfare" provisions may not be used as authority for the exercise of police powers not covered by a specific grant of power. Anderson v. City of Olivette,
The "residual powers" provisions of Article
We do note that Article
II. Mutual Aid Agreements With Voluntary Fire Service Organizations For Extraterritorial Fire Protection Services
Section
Sections
Article
Section
No county, city, town, village, school township, school district or other municipal corporation shall make any contract, unless the same shall be within the scope of its powers or be expressly authorized by law, nor unless such contract be made upon a consideration wholly to be performed or executed subsequent to the making of the contract; and such contract, including the consideration, shall be in writing and dated when made, and shall be subscribed by the parties thereto, or their agents authorized by law and duly appointed and authorized in writing.
In light of our conclusion above that Section
We view the application of this opinion to be very limited. Cities are only allowed to provide extraterritorial fire protection services in order to "protect themselves". Accordingly, we do not view this opinion as authorizing the provision of extraterritorial fire protection services by cities, with or without mutual aid agreements, at distances far from the boundaries of the city.
CONCLUSION
It is the opinion of this office that:
(1) Third class cities under the mayor-council form of government pursuant to Chapter 77, RSMo 1978 and RSMo Supp. 1984, may provide fire protection services outside the city limits, so long as the safety, health, welfare, property, or commerce of the inhabitants of the city are benefited thereby; and
(2) Such cities may enter into mutual aid agreements with "voluntary" fire service organizations, so long as the safety, health, welfare, property, or commerce of the inhabitants of the city are benefited thereby.
Very truly yours,
WILLIAM L. WEBSTER Attorney General
Anderson v. City of Olivette , 518 S.W.2d 34 ( 1975 )
State Ex Rel. Jardon v. Industrial Development Authority , 570 S.W.2d 666 ( 1978 )
Missouri Public Service Co. v. City of Trenton , 509 S.W.2d 770 ( 1974 )
Tietjens v. City of St. Louis , 359 Mo. 439 ( 1949 )
State Ex Rel. Blue Springs v. McWilliams , 335 Mo. 816 ( 1934 )