Alabama Advisory Opinions December 08, 2021: AGO 2022-012

Advisory Opinion Text

Honorable Ward D. Robertson, III

Probate Judge

Tuscaloosa County

Post Office Box 20067

Tuscaloosa, Alabama 35402

Fire Districts - Fees - Petitions -Elections - Tuscaloosa County

Local Act No. 665 does not require a petition to be supported by 100 signatures for the levying of a service charge or fee when such a petition is filed by a district that has already been established.

Dear Judge Robertson:

This opinion of the Attorney General is issued in response to your request on behalf of the Tuscaloosa County Judge of Probate.

QUESTION

Does Section 4 of Local Act No. 665, which requires 100 signatures to establish a fire protection district in Tuscaloosa County, also require a petition with 100 signatures for the levying of a service charge or fee as set out under Section 13 of the same Act, even when a district has already been established?

FACTS AND ANALYSIS

Your opinion request states that the Lakeview Fire Protection District ("District") has requested by letter an election for an increase in fees pursuant to Local Act No. 97-665. Although Section 4 of Act No. 97-665 refers to a requirement that petitions for elections to resolve questions faced by proposed fire protection districts be supported by 100 signatures, Section 13, which sets out procedures surrounding a district's levying of a service charge or fee, does not mention any signature requirement. You ask if Section 4's requirement that a petition for the levying of a fee be supported by 100 signatures apply under Section 13 to petitions filed by the District which has already been established.

Section 4 of Local Act 97-665 sets out the procedure for filing a petition for an election on questions pertaining to a "proposed" fire protection district:

(a) Upon any petition being filed in the office of the probate judge of the county, he shall order an election to be held in the proposed district on the question, or questions, on which the petition requests an election. The petition shall be signed by at least 100 qualified electors residing within the boundaries of the proposed district.

(b) The petition shall contain a map and a description of the area which it is proposed be established as a district under the provisions of the act; and the petition shall request the probate judge to call an election on one or more of the following questions: "Shall there be created for the area a district for fighting fires? Yes. No.

(c) The petition shall state the name of the proposed district. The board of a district may change the name of the district by filing in the office of the probate judge a copy of a resolution changing the name thereof, which copy shall be certified by the president of the board.

(d) The petition for election on the establishment of a district may be accompanied by a petition for an election on the question of levying a proposed service charge or fee which last named petition shall be signed by at least 100 qualified electors residing within the proposed district. A petition for an election on the establishment of a district shall be deemed to be accompanied by a petition for an election on the question of levying a proposed service charge or fee and a petition for an election on the question of the proposed composition of the board, if the request for the election on the proposed district, the request for an election proposed service charge or fee, and the request for an election on the proposed composition of the board are combined in a single petition.

Ala. Acts No. 97-665, § 4 (emphasis added). More specific to requirements regarding elections on the question of levying a service charge or fee, Section 13 provides:

(a) No service charge or fee shall be levied unless the same has been first approved by the majority of the votes cast at an election held hereunder by the qualified electors residing within the district, or within the proposed district.

(b) An election on the question of levying a service charge or fee in a proposed district may be held at the same time that the election is held on the creation of the district, provided that the petition for the election on the question of the service charge or fee accompanies the petition for the election on the establishment of the proposed district, as provided herein. An election on the question of a service charge or fee may be held upon the board of a district submitting to the probate judge a petition for such election as provided. The board shall file in the office of the probate judge a petition that he call an election in the district on the question of whether the service charge or fee proposed shall be levied. No election shall be required to refund overpaid service charges or fees, to correct errors in the assessment thereof, or to terminate the assessment and collection thereof upon the withdrawal of a property owner from a district as provided herein; all of which shall be effectuated by written authorization of the president of the board.

(c) The petition shall state specifically the charge or fee which it is proposed shall be levied. The petition may request that an election be held on more than one proposed charge or fee. Upon the petition being filed with the probate judge, he shall order an election to be held within the time provided for by this act.

Ala. Acts No. 97-665, § 13 (emphasis added).

Because Section 13 does not refer to the 100-signature requirement as set out in Section 4, there is ambiguity as to whether a petition filed on behalf of an already-existing district to levy a service charge or fee is required to be supported by 100 signatures. When construing two statutes covering "the same or similar subject matter" that appear to be conflicting, such statutes should be read in pari materia, giving each provision equal weight and, if possible, reading them as being consistent with one another. Ex parte Johnson, 474 So.2d 715, 717 (Ala. 1985). Because a court will ultimately seek to determine the intent of the legislature through the plain meaning of the words of a statute, furthermore, the words in a statute should be read "in their context and with a view to their place in the overall statutory scheme." Davis v. Michigan Dept. of Treasury, 489 U.S. 803, 809, 109 S.Ct. 1500, 103 L.Ed.2d 891 (1989).

Because Section 4 refers to a "proposed district" throughout and sets out requirements for petitions regarding such districts, a plain reading of this provision indicates that it does not cover petitions filed by districts already in existence. Although the first clause in subsection 4(a) appears to indicate that Section 4 applies to "any petition being filed in the office of the probate judge," the very next clause declares that the probate judge shall hold an election "in the proposed district." Ala. Acts No. 97-665, § 4(a). (emphasis added). The next sentence, which sets out the 100-signature requirement for such petitions, limits the electors authorized to sign the petition to those "residing within the boundaries of the proposed district." Id. (emphasis added). Likewise, subsection 4(b) discusses requirements for a petition to establish a district and subsections 4(c) and 4(d) both refer to a "proposed district." Ala. Acts No. 97-665, § 4(b) - (d) (emphasis added). Indeed, subsection 4(d), upon setting out a 100-signature requirement for a petition to levy a service charge or fee, again limits the electors authorized to sign the petition to those "residing within the boundaries of the proposed district." Ala. Acts No. 97-665, § 4(d) (emphasis added).

Section 13, on the other hand, more clearly applies to both proposed districts and to districts already in existence. In contrast to Section 4, subsection 13(a) specifies that the qualified electors for any election to levy a service charge or fee may "resid[e] within the district, or within the proposed district." Ala. Acts No. 97-665, § 13(a) (emphasis added). Notably, the only time Section 13 limits its coverage to a "proposed district" is during subsection 13(b)'s discussion of when a petition to levy a service charge or fee is filed simultaneously with a petition to establish a district. Ala. Acts No. 97-665, § 13(b). By referring to an election "as provided herein," subsection 13(b) refers back to Section 4's requirements for petitions and elections to establish new districts. Id.

The contrast between Section 4's application only to proposed districts and Section 13's application to all districts highlights that the two provisions outline two distinct procedures and that the requirements of one provision do not automatically apply to the other unless a specific reference is made. This conclusion is reinforced by other provisions of the Act, such as Section 5 (which applies to "all elections provided for by the act") and Section 7 (which requires notice for elections "held under Section 4 or Section 13"). These provisions emphasize that the Act sets out two distinct election procedures and that proper reference must be made to indicate which procedures apply. Therefore, because Section 13 does not refer to a 100-signature requirement for petitions to levy a service charge or fee in an already existing district, it must be interpreted as not requiring 100 signatures. Likewise, because Section 4 is limited to petitions and elections in proposed districts, it also does not require 100 signatures to support a petition to levy a service charge or fee in an already existing district.

CONCLUSION

Local Act No. 665 does not require a petition to be supported by 100 signatures for the levying of a service charge or fee when such a petition is filed by a district that has already been established.

I hope this opinion answers your question. If this Office can be of further assistance, please contact John Porter of my staff.

Sincerely,

STEVE MARSHALL Attorney General

BEN BAXLEY Chief, Opinions Division