DISTRICTS ‑- FIRE ‑- COMMISSIONERS ‑- AUTHORITY OF ASSOCIATION TO INCORPORATE AS A NONPROFIT CORPORATION.
An association of fire commissioners provided for by RCW 52.08.030 (5) does not have the authority to incorporate as a nonprofit corporation.
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September 19, 1963
Honorable Norman B. Ackley
State Representative, 31st District
16923 A Maplewild
Seattle 66, Washington
Cite as: AGO 63-64 No. 58
By letter previously acknowledged you have requested the opinion of this office on a question which we paraphrase as follows:
May an association of fire commissioners provided for by RCW 52.08.030 (5) incorporate as a nonprofit corporation?
We answer this question in the negative.
RCW 52.08.030 (5) provides:
"Any fire protection district organized under this act shall have authority:
". . .
"(5) To encourage uniformity and coordination of fire protection district operation programs, the fire commissioners of two or more fire protection districts, may form an association thereof, for the purpose of securing data and information of value in fighting and in preventing fires; hold and attend meetings thereof; and promote more economical and efficient operation of the associated fire protection districts. [[Orig. Op. Page 2]] The directors of fire protection districts so associated shall adopt article of association, select a chairman and secretary, and such other officers as they may determine, and may employ and discharge such agents and employees as the officers deem convenient to carry out the purposes of the association. The expenses of the association may be paid from fire protection district expense funds upon vouchers of the respective associated districts: Provided, That the aggregate contributions made to the association by any district in any calendar year shall not exceed one‑tenth of one mill of the tax valuation of the district;"
This statute has been the pattern for other recently adopted statutes providing for associations of sewer district commissioners and water district commissioners. RCW 56.08.110; RCW 57.08.110. It may be noted that the statute does not compel commissioners to form associations, but only gives them power to do so. If they choose to associate, however, mandatory language comes into play:
". . . The directors of fire protection districts so associatedshall adopt articles of association, select a chairman and secretary, and such other officers as they may determine, . . ." (Emphasis supplied.)
InState ex rel. Eastvold v. Maybury, 49 Wn.2d 533, 304 P.2d 663 (1956), at page 539, the Washington court, quoting with approval from State ex rel. State Board Etc. v. Clausen, 84 Wash. 279, 282, 146 Pac. 630 (1915), stated:
"'But where a person or board is charged by law with a specific duty,and the means for its performance are appointed by law, there is no room for implied powers, and the means appointed must be followed, however inadequate may be the result. (Italics ours.)'"
See, also, 3 Sutherland, Statutory Construction, § 5808 (1943), where the rule is stated as follows:
"Where authority is granted to public officers to do a thing in a certain way, the manner of doing the thing is mandatory, or jurisdictional, [[Orig. Op. Page 3]] and a limitation on the authority of the officer, even though the doing of the thing in the first place may be discretionary. . . ."
Consequently, any association of commissioners contemplated by RCW 52.08.030 (5), must at least do these things:
(1) Adopt articles of association; and
(2) select a chairman and a secretary as association officers.
Chapter 24.04 RCW likewise imposes mandatory requirements on those who form nonprofit corporations. RCW 24.04.050 provides:
"Not less than five individuals, copartnerships, or corporations shall be required to form a corporation hereunder. Articles of incorporationshall be prepared, executed and acknowledged in triplicate; one copyshall be filed in the office of the secretary of state, another in the office of the county auditor of the county in which the principal place of business of the corporation is located, and the third retained in the possession of the corporation. Such articlesshall state the name of the corporation, the purposes for which it is formed, the place where its principal place of business will be, its duration, the number of the trustees thereof, and the names of the trustees who shall manage the affairs of the corporation for such length of time, not less than two months, nor more than six months, as may be designated in such articles, until the trustees shall be elected by the members. The formation of the corporation shall be complete upon the filing of the articles as herein provided." (Emphasis supplied.)
RCW 24.04.060 provides:
"Before transacting any business or acquiring any property the members of the corporationmust meet and adopt bylaws. . . ." (Emphasis supplied.)
RCW 24.04.130 provides:
"All corporations formed under the provisions of this chaptershall pay to the secretary of state, the sum of twenty-five dollars for filing the articles of incorporation, and for the filing of any amendment thereof, the sum of ten dollars. For filing the articles of incorporation, the county auditor shall charge the sum of two dollars. For filing any amendment the county auditor shall charge the sum of one dollar. Corporations organized under this chapter shall not be subject to any corporation license fees excepting fees hereinabove enumerated." (Emphasis supplied.)
If fire district commissioners associated as a nonprofit corporation they would have to satisfy these requirements as well. When the requirements of chapter 24.04 RCW are juxtaposed with those of RCW 52.08.030 (5), several incongruities appear. Commissioners associating in a nonprofit corporation would have to adopt article of association, but they would also have to adopt articles of incorporation. They would have to select a chairman and a secretary as association officers, but they would also have to name trustees to manage their corporation. Further, they would have to do at least three things which commissioners associating under RCW 52.08.030 (5) alone would not have to do: (1) adopt bylaws; (2) file articles; and (3) pay filing fees. Finally, once associated they would encounter puzzling legal problems about the nature of their organization. For example, how might it be dissolved? While the normal rule is that a voluntary association dissolves at the volition of a simple majority of its members, (Strong v. Garvey Memorial Liberty Hall, 380 Pa. 236, 110 A.2d 244 (1955)) RCW 24.04.090 provides:
"Any corporation formed under this chapter may be dissolved and its affairs wound up voluntarily by the written request of two thirds of the members. . . ."
Therefore, if commissioners chose not merely to associate, but to associate in a nonprofit corporation, their association would have awkward attributes. They would spend public funds for a purpose (filing articles of incorporation) which an association established under RCW 52.08.030(5), supra, need not spend them for. They also would encounter the question of which rules of law apply to their organization.
It is our opinion that RCW 52.08.030 (5), supra, was enacted to prevent such perplexities in regard to creating and operating fire district commissioners' associations. This statute does not simply permit commissioners to form associations. It does not simply tell them what functions are to be fulfilled by their associations. Rather, after setting forth those matters it goes on to instruct commissioners about how to form associations and how the associations are to function after formation. Such specificity in instructions suggests an intent to establish a path which fire district commissioners are to follow, and from which they are not to deviate.
Accordingly, it is our conclusion that the legislature did not intend fire protection district commissioners' associations, provided for by RCW 52.08.030 (5), to be incorporated as nonprofit corporations.
We trust the foregoing will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
EDWIN J. WHEELER
Assistant Attorney General