Mississippi Advisory Opinions September 18, 1985: 19850918 (September 18, 1985)

Advisory Opinion Text

Mr. James D. Spinks

Attorney for the Mayor and Board of Aldermen

Town of DeKalb

Post Office Box 26

DeKalb, Mississippi 39328

Dear Mr. Spinks:

Attorney General Edwin Lloyd Pittman has received your request for an official opinion and has assigned it to the undersigned for research and reply.

Your letter states, in part:

“The Board has instructed me to request an opinion from your office on the matter of support of a municipal fire department. . .

“ Section 83-1-39, Mississippi Code of 1972 provides in part:

'(6) The . . . governing body of any municipality may contribute directly to any volunteer fire department serving such . . . municipality a sum not exceeding one hundred dollars ($100.00) annually per active member of such volunteer fire department. . . . Such funds may be expended by the volunteer fire department for equipment, training and related expenses.”'

“The Board of Aldermen has for years contributed the sum of $155.00 each month to the Volunteer Fire Department, which has approximately twenty active members at this time. In addition, the Board has purchased fire trucks, fire hose, uniforms, oxygen tanks and other fire fighting equipment as needed, subject to the availability of funds.

“Does the enactment of Section 83-1-39 in 1984 by the legislature mean that the town of DeKalb and any other municipality served by a volunteer fire department can spend for fire protection only the sum of $100.00 annually per active volunteer, in addition to the municipal fire protection funds received by the municipality each year?”

Mississippi Code Annotated § 21-25-3 (1972) states, inter alia , that “The governing authorities of municipalities shall have the power to provide for the prevention and extinguishment of fires . . .”. The Mississippi Supreme Court has said “if a power is conferred and the statute is silent as to the mode of exercising it, municipal authorities are clothed with a reasonable discretion to determine the manner in which it shall be carried out. All reasonable modes are inferred. Webb v. City of Meridian , 195 So.2d 832, 835 (1967) .

§ 83-1-39(6) states: “The governing body . . . of any municipality may contribute directly to any volunteer fire department serving such . . . municipality a sum not exceeding one hundred dollars ($100.00) annually per active member of such volunteer fire department. . . . Such funds may be expended by the volunteer fire department for equipment, training and related expenses.” (Emphasis added)

Section 83-1-37 provides in part:

“(3) The fund hereby created and denominated 'Municipal Fire Protection Fund' shall be apportioned and paid over by the state auditor of public accounts to the incorporated municipalities of this state, as defined under section 21-1-1, and shall be distributed thereto once each year on a population basis, such population to be determined by the most recent federal census.

(4) The amount so paid under subsection (3) of this section to a municipality shall be used and expended solely for purposes connected with the improvement of the fire departments of such municipalities.”

Section 21-17-5 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)

Considering all of the above, it is the opinion of this office that municipal governing authorities, are limited to direct contributions of one hundred dollars ($100.00) annually per active member of a volunteer fire department which serves their municipality.

However, under the doctrine of “Home Rule” we find no prohibition against the use of municipal funds over and above monies in the municipal fire protection fund for the purpose of providing for the prevention and extinguishment of fires nor do we find any inconsistency in the expenditure of such funds with the provisions of Section 83-1-37 supra .

Therefore, while municipalities are statutorily limited as to the amount of contributions to their volunteer fire department by Sections 21-17-5 and 83-1-39(6) supra , we find no such limitation on the expenditure of municipal funds by the governing authorities for the purposes of preventing and extinguishing fires.

Very truly yours,

Edwin Lloyd Pittman Attorney General.