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AGO 1966 No. 80 - April 04, 1966
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John J. O'Connell | 1957-1968 | Attorney General of Washington


DISTRICTS ‑- FIRE ‑- TRANSFER OF TERRITORY ‑- PETITION ‑- SIGNATURES REQUIRED.

A transfer of territory from one fire district to another under RCW 52.24.090 may be accomplished without an election if three‑fifths of all the qualified electors in the area to be transferred sign the petition to transfer and merge the territory as provided in RCW 52.24.100.

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                                                                    April 4, 1966

Honorable John G. McCutcheon
Prosecuting Attorney
Pierce County
Tacoma, Washington

                                                                                                                Cite as:  AGO 65-66 No. 80

Dear Sir:

            By letter previously acknowledged you have requested an opinion of this office on a question which we paraphrase as follows:

            Does the 1965 amendment to RCW 52.24.090 mean that an election must be held whenever part of one fire district is to be transferred to and merged with an adjacent fire district without regard to whether the petition calling for such transfer and merger is signed by three‑fifths of the electors in the area to be merged?

            We answer your question in the negative.

                                                                     ANALYSIS

            Section 52.24.090 of the Revised Code of Washington was amended by § 28, chapter 18, Laws of 1965, Ex. Sess., to delete the language enclosed in double parentheses and underlined in the following quotation:

            "A part of one district may be transferred and merged with an adjacent district whenever such area can be better served by the merged district.  To effect such a merger a petition, signed by not less than fifteen percent of the qualified electors residing in the area to be merged, shall  [[Orig. Op. Page 2]] be filed with the commissioners of the merging district.  Such petition shall be promoted by one or more qualified electors within the area to be transferred.  If the commissioners of the merging district act favorably upon the petition, then the petition shall be presented to the commissioners of the merger district.  If the commissioners of the merger district act favorably upon the petition, an election shall be called in the area merged.

            "In the event that either board of fire district commissioners should not concur with the petition, the petition may then be presented to a county review board established for such purposes, if there be no county review board for such purposes then to the state review board and if there be no state review board, then to the county commissioners of the county in which the area to be merged is situated, who shall decide if the area can be better served by such a merger; upon an affirmative decision an election shall be called in the area merged.

            "A majority of the votes cast shall be necessary to approve the transfer.  ((If the original petition should be signed by at least seventy-five percent of the electors in the area to be transferred, no vote shall be necessary.))"

            You ask whether the deletion of this sentence means that elections must now be held, no matter how many electors sign the petition to transfer the territory.

            We answer that the deletion does not have that effect because another statute dispenses with an election if three‑fifths of the qualified electors in the area to be transferred sign the petition.  RCW 52.24.100 says:

            "If three‑fifths of all the qualified electors in the area to be merged sign a petition to merge the districts, no election on the question of the merger is necessary, in which case the auditor shall return the petition, together with his certificate of sufficiency attached thereto, to the boards of the merging districts.  Thereupon the boards of the respective districts shall  [[Orig. Op. Page 3]] adopt their concurrent resolutions of transfer in the same manner and to the same effect as if the same had been authorized by an election."

            As you point out, it is not entirely clear from the language of RCW 52.24.100 whether it is intended to apply to transfer and merger of territory from an adjoining fire district under RCW 52.24.090, supra, or merger of whole fire districts under RCW 52.24.010.  RCW 52.24.100 speaks of a petition "to merge the districts" which is returned by the county auditor to the boards of the "merging districts."  On the other hand, the petitions are to be signed by "qualified electors in the area to be merged" and the two boards of fire district commissioners are to adopt "concurrent resolutions of transfer."

            Our conclusion that RCW 52.24.100 applies to merger of part of a fire district with an adjacent district under RCW 52.24.090 is based on two lines of legal reasoning.

            First, merger of whole fire districts was authorized in 1947,1/ while transfer of territory from one fire district to another was not authorized until 1953.2/   Each law contained its own section on merger without election.  The sections are almost identical, except that RCW 52.24.060, the 1947 statute, refers to petitions signed by "qualified electors in the merging district" where RCW 52.24.100, the 1953 statute, speaks of "qualified electors in the area to be merged," and RCW 52.24.060 says "resolutions of merger" where RCW 52.24.100 speaks of "resolutions of transfer."3/   It is reasonable to conclude  [[Orig. Op. Page 4]] from this that each statute was intended to apply to the type of mergers or transfers which was authorized by the act of which it is a part; that is, RCW 52.24.060 applies to mergers of fire districts under the 1947 act, and RCW 52.24.100 applies to transfers of territory from one fire district to another under the 1953 act (RCW 52.24.090).

            RCW 52.24.100 is a rewrite of RCW 52.24.060.  To the extent that the language is modified, it is made more apt for transfers of territory, as distinguished from mergers of whole fire districts.  The fact that RCW 52.24.100 contains some language which is appropriate for mergers of whole districts may be attributed to a draftsman's failure to revise all the language he copied from RCW 52.24.060.  Only the critical words were modified.

            Additional evidence in support of this theory is furnished by senate committee action which shows attention being directed specifically to a part of the language in RCW 52.24.100 which has been discussed.  Section 7 of Senate Bill 19, 1953 session, (which became § 6, chapter 176, Laws of 1953, and RCW 52.24.100) originally began with the following words:

            "If three‑fifths of all the qualified electors in the respective districts desiring to merge sign a petition . . ." (Emphasis supplied.)

            The senate committee on cities, towns and counties recommended that the underlined language be stricken and "in the area to be merged" be inserted in its place.  (Senate Journal, 1953, page 64.) The amendment was adopted.  (Id., at page 65.)

            The second reason for reaching our conclusion is that the Washington supreme court inState ex rel. Hubbard v. Lindsay, 52 Wn.2d 397, 326 P.2d 47 (1958), assumed that RCW 52.24.100 applies to transfers of territories under RCW 52.24.090.  The holding of the court was that there were insufficient signatures on a petition to transfer territory from one fire district to another under RCW 52.24.090 to obviate the necessity of an election under RCW 52.24.100.  The applicability of RCW 52.24.100 to transfers of territory under RCW 52.24.090 was not questioned by counsel or by the court.

            These circumstances convince us that the procedure prescribed  [[Orig. Op. Page 5]] in RCW 52.24.100 applies to transfers of territory from one fire district to another under RCW 52.24.090.

            We can only speculate why the sentence:  "If the original petition should be signed by at least seventy-five percent of the electors in the area to be transferred, no vote shall be necessary" was added to RCW 52.24.090 in 1963, and stricken from it in 1965.  Our best guess is that when the language of RCW 52.24.090 was generally revised in 1963 (§ 1, chapter 42, Laws of 1963), the sentence was inserted by draftsmen who had overlooked the inconsistency between it and the provisions of RCW 52.24.100.  The 1965 legislature, having been made aware of the inconsistency, removed it by deleting the 1963 sentence.  Whether this theory is correct or not, we are convinced that the addition and subsequent removal of the inconsistent language has no effect on the vitality of RCW 52.24.100 at this time.

            It is the opinion of this office that a transfer of territory from one fire district to another under RCW 52.24.090 may be accomplished without election if three‑fifths of all the qualified electors in the area to be transferred sign the petition to transfer and merge the territory, as is provided in RCW 52.24.100.

            We trust the foregoing will be of assistance to you.

Very truly yours,

JOHN J. O'CONNELL
Attorney General

MORTON M. TYTLER
Assistant Attorney General

                                                         ***   FOOTNOTES   ***

1/Sections 12-19, chapter 254, Laws of 1947.

2/Sections 5-6, chapter 176, Laws of 1953.

3/The full language of RCW 52.24.060 is as follows:

            "If three‑fifths of all the qualified electors in the merging district sign the petition to merge, no election on the question of the merger is necessary.  In which case the auditor shall return the petition, together with his certificate of sufficiency attached thereto, to the board of the merging district.  Thereupon the boards of the respective districts shall adopt their concurrent resolutions of merger in the same manner and to the same effect as if the merger had been authorized by an election."

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