AGO 1961 No. 72 - Oct 11 1961
CITIES AND TOWNS ‑- THIRD CLASS ‑- AMBULANCES ‑- POWER TO OPERATE.
(1) A city of the third class may maintain and operate an ambulance to such extent as is essential to the general health, welfare and safety of its inhabitants, subject to certain limitations.
(2) A city of the third class does not have the power by itself or as a member of a private organization to provide ambulance service to areas outside its corporate limits except to transport persons to a physician, hospital or other facility located outside the city limits.
(3) A city of the third class has no authority under state law to receive and possess an ambulance or ambulance‑type vehicle for use by its employees on a volunteer basis, and not as agents or employees of the city, in answering calls for assistance both within and without the city's corporate limits.
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October 11, 1961
Honorable R. DeWitt Jones
301 Court House
Cite as: AGO 61-62 No. 72
By letter previously acknowledged you have requested the opinion of this office on the following questions:
"(a) May the City of Camas maintain and operate for strictly emergent and disaster calls an ambulance type vehicle using City personnel to maintain the vehicle and to operate it in connection with emergency calls?
"(b) May a third class city become a member of a community organization set-up for the express purpose of acquiring, maintaining, and operating a disaster vehicle limited to emergency calls within the city and including rural areas contiguous with and adjacent to the city?
"(c) Can a third class city permit a [[Orig. Op. Page 2]] community program to place an emergency ambulance type vehicle or disaster car in the possession of the city and permit city employees to operate the vehicle on emergency calls, provided the employees are not doing so as agents of or employees of the city itself? In other words, may the city arrange with city employees to take voluntary leave from city duties solely to assist in answering emergency calls within the city and a rural area including the geographical limits covered by the committee on maintenance of disaster vehicles for the Camas area?"
We answer your first question in the affirmative, as qualified in the analysis; and your second and third questions in the negative.
We emphasize, at the outset, that we have been asked to consider these questions solely on the authority of a third class city as such, and not with regard to any provisions of the civil defense act, authorizing certain joint governmental activities.
A city of the third class, as a municipal corporation, has only the powers granted to it expressly by statute, and those powers which are necessarily implied from the powers expressly granted. Othello v. Harder, 46 Wn. (2d) 747, 284 P. (2d) 1099 (1955); Pacific Etc. Ass'n v. Pierce County, 27 Wn. (2d) 347, 178 P. (2d) 351 (1947). If there is a doubt as to the existence of a power, it must be denied. Pacific Etc. Ass'n. v. Pierce County, supra, p. 352.
Our research discloses no express statutory authority for a city of the third class to do any of the things mentioned in your letter. Consequently, it is necessary to determine whether or not the power has been granted by necessary implication.
The answer to your first question is found in a previous opinion of this office written to the division of municipal corporations January 3, 1949 (AGO 49-50:8a) [[Opinion No. 47-49-502 or 1949-50 OAG 8a]], a copy of which is enclosed for your information. Therein we concluded that a fourth class city (town), notwithstanding the absence of express statutory authority, had implied authority under general laws to operate an ambulance. However, we pointed out that the authority was necessarily limited by the nature of the implied grant, and that a town could not operate an ambulance service for the general business of transporting patients, as distinguished from such service as wasnecessary to promote the general health, welfare and safety of the inhabitants of a municipality.
[[Orig. Op. Page 3]]
The conclusions of that opinion are sufficiently broad so as to include cities of the third class, as well as towns. In our opinion, therefore, a city of the third class has the power to operate an ambulance, to the extent that such service is essential to promote the general health, welfare and safety of the city's inhabitants, subject to certain limitations which will be discussed in our answer to your second question.
Your second question contains two elements: (1) the power of the city to participate actively (and we must assume financially) in a worthy community effort; and (2) the power of a city of the third class to operate an ambulance service, alone or in conjunction with others, outside its corporate limits.
As to the first: Even assuming that the city had all requisite authority to carry on the activity entirely by itself, there would be a serious doubt about its power to contribute in such a way as to necessitate the expenditure of municipal funds in a privately sponsored community effort, no matter how worthy the cause. Johns v. Wadsworth, 80 Wash. 352, 141 Pac. 892 (1914); 116 A.L.R. 895.
With the added element of service outside the corporate limits, a further problem is presented. Municipal corporations have no inherent power to perform functions beyond their corporate limits, and on that premise we have concluded that a city cannot, without express statutory authority, operate an ambulance legally beyond its boundaries except to take persons to a physician, hospital, or other facility located outside its limits. See opinion to the prosecuting attorney of Grays Harbor County, dated January 28, 1949, (AGO 49-50:12c) [[Opinion No. 47-49-520 or 1949-50 OAG 12c]]copy of which is also enclosed. While the subject of that opinion was likewise a town, again the conclusion has equal application to cities of the third class.
The legislature has since seen fit to grant to cities of the fourth class express statutory authority for the operation of ambulance service both within and without the town limits. See, RCW 35.27.370 (16). However, there has been no such enabling legislation in the case of third class cities.
Accordingly, we conclude that your second question must be answered in the negative.
Your third question poses again a two-part problem. The first part appears to be whether or not a third class city can legally possess and hold personal property for other than its own corporate uses. The second part is whether or not the city can permit its employees to take sporadic leaves of absence in order to utilize the property for this noncorporate purpose.
[[Orig. Op. Page 4]]
As to the first part, RCW 35.24.010 defining in general terms the rights, powers and privileges of a third class city, provides in pertinent part as follows:
"Every city of the third class . . . may purchase, lease, receive, hold, and enjoy real and personal property and may control and dispose of it for the common benefit; . . . "
At first glance, this statute would appear to grant the requisite general authority. However, inMiller v. Pasco, 50 Wn. (2d) 229, 310 P. (2d) 863 (1957), our supreme court had occasion to construe these general provisions on the subject of the power to lease municipal property. The court however considered a further statute relating to third class cities, RCW 35.24.300, which grants authority to lease certain property for certain specified purposes. The court held that the city's power to lease municipal property was limited by the specific terms of the latter statute, under the rule of statutory construction that ". . . where general powers are granted with specific powers enumerated, the general powers are modified, limited, and restricted to the extent of the specific enumeration. [Citing cases.]"
The power granted by RCW 35.24.010, supra, to receive and hold property, is likewise limited by RCW 35.24.300,supra, to ". . . acquire real estate and personal propertynecessary or proper for municipal purposes. . ." (Emphasis supplied.)
Since the reception and possession of the vehicle in this case would be solely for other than a corporate use by the city, the foregoing necessitates our answering your third question in the negative, without disposing separately of its second part. We should add, however, a court would conceivably view the entire problem simply in the light of whether or not a city had the legal authority to undertake a course of action designed solely to accomplish that which it had no authority to do directly. We have no doubt that that question would also be answered in the negative.
We might add that the legislature has already made some provision for rural areas. Fire protection districts, which are designed to operate primarily in unincorporated areas of the county, have authority to provide ambulance service. See AGO 53-55-121 to Representative Beierlein, August 24, 1953, copy of which is enclosed. There is also express statutory authority for certain joint governmental activity to provide emergency service under the civil defense act. See chapter 38.52 RCW, and particularly RCW 38.52.010 and 38.52.070. Of course, we can make no specific recommendation as to the utilization of these latter provisions, since that is a matter dependent [[Orig. Op. Page 5]] upon the situation and practicalities in each area. We merely refer them to you for whatever value they may be.
In summary, our conclusions are as follows:
1. A city of the third class can legally provide such ambulance service, by the operation of an ambulance or ambulance‑type vehicle, as is essential for the general health, welfare and safety of its inhabitants, subject to certain limitations.
2. Such city has no authority, however, by itself or as a member of a private organization, to provide ambulance service to areas outside its corporate limits, except to transport persons to a physician, hospital, or other facility located outside the city limits.
3. A city of the third class has no authority to receive and possess an ambulance or ambulance‑type vehicle for use by its employees on a volunteer basis, and not as agents or employees of the city, in answering calls for assistance both within and without the city limits.
We trust that this information will be of assistance to you.
Very truly yours,
JOHN J. O'CONNELL
ROBERT F. HAUTH
Assistant Attorney General