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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us) STATE OF MICHIGAN FRANK J. KELLEY, ATTORNEY GENERAL Opinion No. 6197 January 12, 1984 CONSTITUTIONAL LAW: Const 1963, art 1, Sec. 2, Equal Protection of Laws--imposition by township of fire protection service fees upon owners of similarly situated properties TOWNSHIPS: Authority for township to require village to contract for fire protection services of properties in the village Duty to provide fire protection services to properties in a village Authority to impose fees upon owners of property within the village receiving fire protection services from township VILLAGES: Duty to contract with township for provision of fire protection services to property in village A township is not required by law to provide fire protection services to privately owned property within a village. A township is not authorized by law to require a village to enter into a contract with the township for fire protection services within the village. In the absence of a contract for fire protection between the township and the village, a township may impose a fee upon property owners for each fire run within the village in order to defray the cost of providing such service, but no fees may be imposed for providing fire protection services to village property. A township may charge the owners of private property in a village reasonable fees for providing fire protection services to such property, provided that such fees are reasonably related to the cost of providing such services and apply equally to similarly situated properties. Honorable Michael J. Griffin State Representative The Capitol Lansing, Michigan Honorable Debbie Stabenow State Representative The Capitol Lansing, Michigan You have requested my opinion on several questions relating to 1951 PA 33; MCLA 41.801 et seq; MSA 5.2640(1) et seq, which provides for fire protection by a general law township in the context of furnishing such services to a village located wholly within the township and the ability of the township to assess fees for said services. Townships possess those powers only which are conferred by law. Hanslovsky v Twp of Leland, 281 Mich 652; 275 NW 720 (1937). The sections of 1951 PA 33, supra, which apply to your questions are 1, 6 and 10. In pertinent part, they provide: 'Sec. 1. (1) The township board of a township, or adjoining townships acting jointly, whether or not the townships are located in the same county, may purchase fire extinguishing apparatus, equipment, and housing for the apparatus and equipment, and for that purpose may provide by resolution for the appropriation of general or contingent funds in an amount which in a 1-year period shall not exceed 10 mills of the assessed valuation of the area in the respective townships for which fire protection is to be furnished. '(2) The township board of a township, or adjoining townships acting jointly, whether or not the townships are located in the same county, may also provide annually by resolution for the appropriation of general or contingent funds for maintenance and operation of a fire department, or for the providing of fire protection by contract. '(3) The township board, or boards acting jointly, may provide that the sums prescribed in subsections (1) and (2) for purchasing and housing equipment, for the operation of the equipment, or contracting for protection may be defrayed by either or both of the following methods: (a) Collection of fees for services. (b) Special assessment on the lands and premises in the township or townships to be benefited thereby, and may issue bonds in anticipation of the collection of these special assessments. 'Sec. 6. The township board of any township or townships acting jointly, where appropriations have been made as herein provided, shall have the power to establish and maintain a fire department. . . . The township board or boards of any township or townships may contract with for the care, maintenance and operation of said apparatus and equipment by the fire department of such township, city or village, upon such terms as may be agreed upon and may contract with the legislative body of any village which does not maintain a fire department to furnish fire protection to the village upon such terms as may be agreed upon. . . . 'Any township board or boards of 2 or more townships acting jointly, which have organized and are maintaining a fire department may also contract with other such township board or boards, or legislative bodies of townships, villages or cities which also maintain a fire department or with any person, organization or group to provide fire apparatus, equipment, personnel or fire protection. . . .' 'Sec. 10. The provisions of this act shall apply to townships, and adjoining townships and incorporated villages and cities under 15,000 inhabitants acting jointly. Whenever reference is made in this act to townships, such reference shall be deemed to mean and apply to townships and incorporated villages and cities under 15,000 inhabitants, and whenever reference is made in this act to township boards, such reference shall be deemed to mean and apply to township boards and the legislative bodies of incorporated villages and cities under 15,000 inhabitants.' (Emphasis added.) Your questions will be addressed seriatim. 1. 'Under the provisions of the Township Fire Protection Act, 1951 PA 33, as amended, may a township, which includes within its borders an incorporated village, insist upon a contract for fire protection between the township and the village . . .?' As the repeated use of the word 'may' in 1951 PA 33, Secs. 1 and 6, supra, indicates, these sections are permissive in nature and not mandatory; they authorize, but do not require, townships and villages to contract for fire protection. In answer to your first question, it is my opinion that a township is not authorized by law to require a village to enter into a contract with the township for fire protection of property in the village. 2. 'May a township . . ., by resolution, assess against such a village or its individual residents, which does not voluntarily contract for fire protection from the township, a minimum fee for each fire run made within the limits of the village, [f]or a portion of the cost of operation of the fire department. . . .?' Townships and villages, respectively, have statutory authority pursuant to 1951 PA 33, supra, Secs. 1 and 10, to establish, maintain, and operate fire departments for the providing of fire protection within their own jurisdictions or for contracting to provide fire protection to other townships, villages, cities, persons, organizations or groups. When a village is incorporated, it is not removed from the jurisdiction of the surrounding township. 'The territory taken into the village when incorporated is in no way separated from the township. It still remains a part thereof, is subject to taxation therein, and its residents are electors thereof.' Bray v Stewart, 239 Mich 340, 344; 214 NW 193 (1927). See also, Village of DeWitt v DeWitt Twp, 248 Mich 483; 227 NW 787 (1929), Twp of Dearborn v City of Dearborn, 308 Mich 284, 296-297; 13 NW2d 821 (1944), Taylor v Township of Dearborn, 370 Mich 47, 50; 120 NW2d 737 (1963), OAG, 1977-1978, No 5340, p 554 (July 28, 1978), and OAG, 1947-1948, No 323, p 300 (May 5, 1947). Since a village remains a part of the surrounding township, the township is authorized, pursuant to 1951 PA 33, supra, to provide fire protection services within the boundaries of a village, as well as within the unincorporated areas of the township. OAG, 1979-1980, No 5538, p 339 (August 10, 1979), concluded that a township is expressly authorized by 1951 PA 33, supra, to pay for fire protection services by the imposition and collection of fees, and those persons receiving such services may not refuse to pay for such services. While a township is authorized to provide fire protection services to a village within the township and to collect a fee from persons owning property in the village and receiving such services, it may not impose a service charge or fee upon municipally-owned property. OAG, 1981-1982, No 5915, p 216, 217 (June 5, 1981), stated: '1951 PA 33, Sec. 1(3), supra, is silent on the question of whether service fees may be collected for services relating to municipally-owned property. In light of Big Rapids, (99 Mich 351; 58 NW2d 358) supra, which proscribes special assessments against municipally-owned property, it is my opinion that service fees are not applicable to such municipally-owned property for the same reasons as expressed in that case.' (1) 1951 PA 33, Sec. 1(1) and (2), supra, provide that a township may, by resolution, appropriate general or contingent funds for the various purposes described therein. 1951 PA 33, Sec. 1(3), supra, states that the sums prescribed in subsections (1) and (2) may be defrayed by either the collection of fees for fire protection services rendered or by special assessment, or by a combination of each method. However, section 1(3) fails to set forth the precise manner, as does section 1(1) and (2), by which the township may provide for the collection of fees for such services. In Case v City of Saginaw, 291 Mich 130, 151; 288 NW 357 (1939), the court quoted with approval from Detroit v Detroit United Railway, 215 Mich 401 (1921): "An ordinance has been defined to be a permanent, continuing regulation, while the resolution is an act of a temporary character not prescribing a permanent rule of government.' 'If no statute prescribes a method of action and no charter provision requires it, when the action is merely declaratory of the will of the [municipal] corporation in a given matter, and is in the nature of a ministerial act, it is proper to act by resolution.' See also, Kalamazoo Municipal Utilities Association v City of Kalmazoo, 345 Mich 318, 328, 334; 76 NW2d 1 (1956), and OAG, 1979-1980, No 5666, p 640 (February 26, 1980). Inasmuch as the establishment of a fee for fire services would be an implementation of the provisions of 1951 PA 33, supra, it would be a valid exercise of municipal authority to do so by resolution. It is my opinion, in response to your second question, that in the absence of a contract for fire protection between the township and the village, the township may, by resolution, impose a fee for each fire run made to privately owned property within the village in order to defray the costs of providing such service upon the owners of the property receiving such fire protection services. It is my further opinion that the township may not impose a fee upon the village for fire service provided to village property. 3. In the absence of a contract for fire protection and the refusal to pay fees may the township deny fire protection to residents of the village? It has been held that absent special agreement or statute, municipalities are under no legal duty to protect a citizen's property from damage by fire. Steitz v City of Beacon, 295 NY 51; 64 NE 2d 704 (1945). See also, Kramer v Hayward, 57 Wis 2d 302; 203 NW 2d 877 (1973). 1951 PA 33, supra, authorizes a township to establish and maintain a fire department or to contract with various entities and/or individuals or to act jointly with other municipalities to provide fire protection. While a township is authorized to provide fire protection, the Legislature has not commanded the township to provide such service. If a township determines to provide fire protection pursuant to 1951 PA 33, supra, the Legislature has provided that the township is authorized to establish a fire protection system that services an area comprising less than the entire township. The title clause of 1951 PA 33, supra, sets forth the purpose of the statute as 'an act to provide fire protection for townships, and for certain areas in townships. . . .' Section 1(1) provides that a township may appropriate general or contingent funds in an amount which 'shall not exceed 10 mills of the assessed valuation of the area in the respective townships for which fire protection is to be furnished.' Section 1(6), which relates to the establishment of a special assessment district, provides that the boundaries thereof shall be determined by the township board, which shall direct the spread of the 'assessment levy on all the lands and premises in the district which are to be especially benefited by the fire protection.' It should be noted that the Legislature, although being aware that residents of a village are also residents of the township and that they contribute to the township general and contingent funds at the same rate as do other township residents, (OAG, 1977-1978, No 5340, supra, and Bray v Stewart, supra), has in 1951 PA 33, Secs. 1(1) and (2), supra, nonetheless, provided that the township may use said general and contingent funds to support a fire protection system which may service an area that does not encompass the entire township, in spite of the fact that persons or entities within the township have contributed to the support of such services. The fact that a village may set up its own fire protection system under 1951 PA 33, supra, or that such village residents, who are outside the area serviced, may be of the view that the township is not providing adequate services in return for their tax dollars will not excuse the necessity for payment of legally imposed township taxes. See generally, Mitchell v City of Negaunee, 113 Mich 359; 71 NW 646 (1897); OAG, 1977-1978, No 5254, p 324, 326 (January 17, 1978), and OAG, 1977-1978, No 5340, supra. In regard to the reference in your third question to a refusal, by people receiving fire protection services from the township, to pay a properly imposed fee for fire services, in OAG, 1979-1980, No 5538, supra, it is stated that the law of the state does not recognize the refusal to pay of persons receiving fire protection services. Any grievances of village property owners attending nonreceipt of fire protection services or being required to pay fees for fire protection service in the event that the territory of the village has not been included in a special assessment district area for protection service under 1951 PA 33, supra, or the village has not contracted with a township for such services, should be addressed to the Legislature. In response to your third question, it is my opinion that the township is not obligated to provide fre protection services to the privately owned property located in a village. 4. May a township charge a fee for fire protection within a village that is different from the fee the township charges other areas of the township for comparable fire protection? 1951 PA 33, Sec. 1(3), supra, authorizes a township to collect fees to defray the cost of providing fire protection. 1951 PA 33, Sec. 6, supra, provides that a township may contract with a village 'to furnish fire protection to the village upon such terms as may be agreed upon.' As 1951 PA 33, Sec. 1(3), supra, provides, the fee to be charged for the provision of fire protection services should relate to an amount necessary to defray the costs of providing such fire protection services In discussing rates and service charges of municipality owned utilities, 12 McQuillin, Municipal Corporations (3rd), Sec. 35.37b, p 486 states, 'variances in rates must have a rational basis and not be purely arbitrary, and must be fair and equal to similarly situated properties, that is, there must be uniformity within the class.' The Supreme Court of Michigan in Beauty Built Construction Corp v City of Warren, 375 Mich 229 236; 134 NW2d 214 (1965), stated: 'Where an ordinance fails to include and affect alike all persons of the same class, and extends immunities or privileges to one part and denies them to others of like kind by unreasonable arbitrary classification, the same is contrary to the equal protection guarantees of the State and Federal Constitutions. See Haynes v. Lapeer Circuit Judge, 201 Mich 138.' See also, Land v City of Grandville, 2 Mich App 681; 141 NW2d 370 (1966), and Oakland County v City of Detroit; 81 Mich App 308; 265 NW2d 130, lv den 403 Mich 810 (1978) In response to your fourth question, it is my opinion that when a township charges fees for fire protection services provided within a village, said fees must relate to the cost of providing the service and, accordingly, may differ area by area, provided, however, that pursuant to the equal protection requirements of Const 1963, art 1, Sec. 2, and the U.S. Constitution, Am XIV, such fees are reasonably related to the cost of providing such services and apply equally to all similarly situated properties. Frank J. Kelley Attorney General (1)
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