Mississippi Advisory Opinions June 03, 1986: 19860603 (June 03, 1986)

Advisory Opinion Text

Honorable J. O. Prude

Attorney for City of Amory

Post Office Box 124

Amory, Mississippi 38821

Municipalities - Fire Department

Dear Mr. Prude:

Attorney General Edwin Lloyd Pittman has received your letter of request and has assigned it to me for research and reply.

Your letter states:

“ Code Section 21-25-5 contains certain grants of authority and exemptions from liability to municipalities in the operation of fire departments, reference being made therein to the 'rescue of persons' and to the ' alleviating of damages or injuries caused by tornadoes or other casualties'. Your opinion is respectfully requested as to whether authority exists, by virtue of Code Section 21-25-5, or otherwise, for a municipal fire department:

“1. To transport and offer emergency aid to persons injured in vehicular or other accidents.

“2. To transport and offer emergency aid to persons who become ill or infirm and who request transportation to a hospital or nursing home.

“3. To transport persons from one medical facility to another, or to their homes or other abode upon leaving a hospital or other medical facility.

“4. In any such case to perform such services beyond the corporate limits.

“5. To charge a reasonable fee for any of these services.

“Your opinion is further requested as to whether the freedom from liability provided by the second paragraph of Code Section 21-25-5 will be abrogated at the effective date of Senate Bill 2441 of the 1984 Legislative Session.”

Mississippi Code Annotated § 21-17-5 (Supp. 1985) provides:

“The governing authorities of every municipality of this state shall have the care, management and control of the municipal affairs and its property and finances, and shall have the power to adopt any orders, resolutions or ordinances with respect to such municipal affairs, property and finances for which no provision has been made by general law and which are not inconsistent with the Mississippi Constitution of 1890, the Mississippi Code of 1972, or any other statute or law of the State of Mississippi , and shall likewise have the power to alter, modify and repeal such orders, resolutions or ordinances.

This section shall not authorize the governing authorities of a municipality to (a) levy taxes of any kind or increase the levy of any authorized tax, (b) issue bonds of any kind, (c) change the requirements practices or procedures for municipal elections or establish any new elective office, (d) change the procedure for annexation of additional territory into the municipal boundaries, (e) change the structure or form of the municipal government, (f) permit the sale, manufacture, distribution, possession or transportation of alcoholic beverages, or (g) grant any donation; unless such actions are specifically authorized by another statute or law of the State of Mississippi.” (Emphasis added)

Section 21-25-5 provides in part:

“The fire departments, including the apparatus and all vehicles of such departments, are hereby authorized to use the roads, highways, streets and alleys outside the corporate limits of such municipalities owning and operating such fire fighting and fire prevention equipment, for the purpose of aiding in the extinguishing and prevention of fires or in the alleviating of damages or injuries caused by tornadoes or other casualties in locations outside the corporate limits of such municipalities. . . .

“To further effectuate and put into force and effect the purposes of this section, such municipalities owning and operating said equipment are hereby declared free of any liability on account of injury to persons or damage to property in going to and from such locations outside the corporate limits when engaged in the extinguishing and prevention of fires or in the alleviating of damages or injuries caused by tornadoes or other casualties, it being the purpose of this section that such municipalities aiding other municipalities or residents of the State of Mississippi located outside the corporate limits of such municipalities shall be entitled to all the benefits and immunities, both from civil and criminal prosecution, as are now enjoyed by such municipalities within their own respective corporate limits. This section shall be liberally construed to effect the purposes thereof.”

In response to your first question, it is the opinion of this office that the authority granted by Section 21-25-5, supra , to operate “fire fighting and fire prevention equipment in the alleviating of damages or injuries caused by tornadoes or other casualties in locations outside the corporate limits . . .” includes the authority to transport and offer emergency aid to persons injured in vehicular or other accidents. This authority would, obviously, apply within the corporate limits also. See Section 21-25-3.

In response to your second and third questions, while Section 21-25-5, supra , specifically authorizes the use of fire fighting equipment to alleviate injuries caused by tornadoes or other casualties it does not appear to contemplate the use of such equipment for the purposes stated in questions number two and three.

The Mississippi Supreme Court in State ex rel. v. Saenger Theatres Corp. , 190 Miss. 391 (1941) in considering a particular statutory provision said:

“In construing this clause we are confronted with the fundamental rule of construction that where a statute enumerates and specifies the subjects or things upon which it is to operate, it is to be construed as excluding from its effect all those not expressly mentioned, or, under a general clause, those not of like kind or classification as those enumerated. Inclusio unius est exclusio alterius. Fisher v. Westomreland 101 Miss. 180, 57 So. 563, Ann. Cas. 1914B, 636; Parsons-May-Oberschmidt Co. v. Furr et al., 110 Miss. 795, 70 So. 895; Tepper Bros. v. Buttorss , 178 Miss. 659, 174 So. 556; Redding v. State, 184 Miss. 371, 185 So. 560. ”

Therefore, in our opinion Section 21-25-5, supra , does not authorize the use of fire fighting equipment for the purposes stated in questions two and three.

It is our further opinion that since Section 21-25-5 specifies how fire fighting equipment may be used outside of the corporate limits, the municipal governing authorities would be precluded from expanding that authority by ordinance, resolution or order.

However, please see Sections 41-55-1 et seq . which authorize the creation of a public ambulance service which could provide the services described in questions two and three and specifically authorize joint ambulance services by a municipality and a county. Said statutes also authorize the establishment and collection of fees for such services.

In response to your final unnumbered question, Chapter 495, (S.B. 2441) is codified as Chapter 46, Title 11, Mississippi Code of 1972 (Supp. 1985). Section 11-46-9 provides in part:

“A governmental entity shall not be liable for any claim:

(e) Which is limited or barred by the provisions of any other law: . . . .”

Therefore, the statutory immunity granted by Section 21-25-5 will not, in our opinion, be abrogated if and when Chapter 495, Laws of 1984, becomes effective.

However, we point out that the immunity of Section 21-25-5 applies only to activities involving the use of fire fighting equipment outside the corporate limits for the purpose of extinguishing and preventing fires or in alleviating damages or injuries caused by tornadoes or other casualties.

Very truly yours,

Edwin Lloyd Pittman Attorney General.