Oregon Advisory Opinions January 01, 1947: OP 174

Advisory Opinion Text

Upon the incorporation of a city in­cluding substantially all the area in a previously organized rural fire pro­tection district, the assets, powers and liabilities of the fire protection district were transferred to the city by operation of law, in so far as they applied to property within the city. Any unused funds of the fire control district should be prorated between the city and that part of the district not included in the city.

No. 174 January 3, 1947 Honorable Warren A. McMinimee

District Attorney, Tillamook County Dear Sir: In your letter of the 27th instant, you state:

"Pursuant to Sections 99-3001-99-3020, O. C. L. A., the residents of the Rockaway commu­nity organized a rural fire protection district. After the rural fire protection district had been in existence for a time a substantial part of the district but not all of the lands included in the fire district organized into the City of Rockaway. pursuant to Sections 95-101 and 95-110, O. C. L. A., and chapter 453, Oregon Laws for 1941.

"Generally speaking, the boundaries of the fire district and the incorporated City of Rockaway are the same, but there are sev­eral parcels in the fire district that are not included in the city and therefore the fire district includes a greater area. The fire dis­trict and the city continued to exist separately and levied taxes; the county assessor included the tax levy on the tax roll and the sheriff to collect taxes based thereon."

You submit the following questions:

"1. Does a pre-existing rural fire protec­tion district which lies in an area which becomes incorporated as a city continue to exist as a separate municipal subdivision, or does it cease to exist by operation of law?

"2. Does it make any difference whether the boundaries of the new city and the fire protection district are the same (the fire pro­tection district being greater as under the facts stated)?

"3. If the rural fire protection district ceased to exist, what becomes of the assets and liabilities of the district?

"4. If the sheriff has acted ultra vires in collection of the taxes under the recited facts, what disposition shall be made of money collected but not yet turned over to the County Treasurer? The procedure out­lined by Section 99-3015, O. C. L. A., has not been followed for the dissolution of the fire district."

Since separate answers to these ques­tions would involve needless repetition, I will answer them generally and not specifically.

Section 99-3001, O. C. L. A., which re­lates to the organization of rural fire protection districts, applies to contiguous unincorporated territory lying within any county and not incorporated within any rural fire protection district nor within the boundary of any incorporated city or town. Since the Rockaway dis­trict was organized prior to the incor­poration of the city, the restriction above mentioned did not apply to the organiza­tion of said district.

In my opinion of December 10, 1946, to the District Attorney of Marion County, it is held that if a city may annex ter­ritory from a part of a rural fire pro­tection district, it follows that in the absence of legislation to the contrary, such city has jurisdiction superior to and exclusive of that exercised by the district. Particularly is this true where the service rendered by the district is embraced in and is a small part of the services performed by the city or town. Citing: In re Sanitary Board of East Fruitvale Sanitary District, 158 Cal. 453, 111 Pac. 368; Royal Oak Township v. City of Ferndale, 309 Mich. 458, 15 N. W. (2d) 707; McQuillin, "Municipal Cor­porations" (2d), Vol. 1, page 775; Priest v. James, 125 Or. 72, 265 Pac. 1002.

In State ex rel v. Chandler et al., Adv. Sheets, Oregon Supreme Court, Vol. 43, No. 12, page 372, it is held to be a principle of law " 'that two lawfully and fully organized public or municipal corporations can not have jurisdiction and control at one time of the same population and territory and exercise like or similar powers in the same bounda­ries.' 1 McQuillin, Municipal Corporations, Revised Second Edition, Sec. 283, p. 775. See also in this connection, Priest v. James, 125 Or. 72, 265 P. 1092; State ex rel v. Goff, 110 Or. 349, 218 P. 556, 221 P. 1057; Rathfone v. Payette-Oregon Slope Irr. Dist, 76 Or. 606, 149 P. 1044."

It has been held that where a municipality such as a city has been dissolved and another municipality covering the same territory has been organized, the new municipality suc­ceeds as to all of the powers, assets and liabilities of the former municipality: Port of Mobile v. Watson, 116 U. S. 289, 29 L. Ed. 620; Shapleigh v. San Angelo, 147 U. S. 647, 42 L. Ed. 313; Vilas v. Manila, 220 U. S. 345, 55 L. Ed. 491.

Exception to the said rule is made in cases where the powers or purposes of the second municipality do not include those of the first municipality. For example, it has been held that the or­ganization of a port district which in­cludes the same area as a municipality is not affected by the rule: Straw v. Harris, 54 Or. 424.

It appears from your statement of facts that the rural fire protection dis­trict continued to levy taxes and exercise its functions, notwithstanding the or­ganization of the city of Rockaway and that the city of Rockaway did not at­tempt to exercise any of the powers that were then being exercised by the fire protection district.

It is my opinion that upon the incor­poration of the city of Rockaway the assets, powers and liabilities of the fire protection district were transferred by operation of law to the city of Rockaway, in so far as they applied to property within said city, but that the fire pro­tection district did not thereby cease to exist for such purposes as may be neces­sary to fully accomplish the transfer of such assets, including any taxes that may have been collected by the district but used for fire protection purposes. Any such unused funds should be di­vided between the city and the tax­payers outside the district who con­tributed to same on the basis of contribution.

GEORGE NEUNER. Attorney General, By Willis S. Moore, Assistant.

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