May 20, 2002

ATTORNEY GENERAL OPINION NO. 2002 - 27

The Honorable James A. Barnett

State Senator, 17th District

1400 Lincoln

Emporia, Kansas 66801

Re:	Counties and County Officers--Fire Protection--Governing Body; Powers; Tax Levies; Use of Proceeds; Installation of Fire Hydrants

Synopsis:	A county fire district is not authorized to use funds levied pursuant to K.S.A. 19-3610 to pay for the installation of fire hydrants. Cited herein: K.S.A. 8-
1571; 13-1227; 13-1278; 13-2402; 19-3601; 19-3601a; 19-3610; 80-1605.

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Dear Senator Barnett:

You ask whether a county fire district may pay for the installation of a fire hydrant. You acknowledge a prior opinion of former Attorney General Robert T. Stephan1 that concluded that the purchase of fire hydrants was not a proper expenditure for a township from proceeds of a tax levy for fire protection. You indicate that you disagree with that opinion, and point out that your inquiry relates to a county fire district, rather than to fire protection by a township.

A county fire district is a creature of statute and has only such power and authority expressly granted by the Legislature.2 K.S.A. 19-3601 et seq. provides for the organization of county fire districts. The powers of a county fire district governing body are set forth in K.S.A. 19-3601a as follows:

"Upon the creation of a fire district under the provisions of K.S.A. 19-3601 et seq., and amendments thereto, the governing body shall have the authority to:

"(a) Enter contracts;

"(b) acquire and dispose of real and personal property;

"(c) acquire, construct, reconstruct, equip, operate, maintain and furnish buildings to house fire fighting equipment;

"(d) acquire, operate and maintain fire fighting equipment;

"(e) issue bonds as provided in this act;

"(f) pay compensation and salaries to fire district employees;

"(g) exercise eminent domain;

"(h) pay the operation and maintenance expenses of the fire district and any other expenses legally incurred by the fire district; and

"(i) do all other things necessary to effectuate the purposes of this act."

K.S.A. 19-3610 authorizes an ad valorem tax levy on property within a fire district and limits the use of levy proceeds "to carry out the powers, duties and functions of the governing body of the fire district as specified in K.S.A. 19-3601a. . . ." The only provision of K.S.A. 19-3601a that might arguably authorize the use of a county fire district's funds for the installation of a fire hydrant would be subsection (d), "acquire, operate and maintain fire fighting equipment."

Although Attorney General Opinion No. 92-78 dealt with fire protection by a township, the pivotal issue was whether fire hydrants could be considered fire fighting equipment. That opinion concluded that:

"Fire hydrants are more reasonably categorized as equipment for the utilization of water than as fire fighting equipment per se. A township is not authorized to purchase fire hydrants with funds levied pursuant to K.S.A. 80-
1503, and accordingly may not use such funds to purchase fire hydrants to loan or give to a rural water district."

We have reviewed that opinion and further researched whether fire hydrants should be considered as "fire fighting equipment" under K.S.A. 19-3601a. The only statutes that refer to fire hydrants, other than one that prohibits parking too close to one,3 are statutes concerning water systems.4 Additionally, in at least one case, the Court considered fire hydrants as part of a township's water works system in discussing whether a township could levy a tax to pay for the installation and maintenance of fire hydrants.5 While fire hydrants are provided solely or primarily for fire protection purposes, in our opinion they are a part of the facilities in a water works system rather than fire fighting equipment. Therefore, we affirm Attorney General Opinion No. 92-78, and opine that a county fire district is not authorized to use funds levied pursuant to K.S.A. 19-3610 to pay for the installation of fire hydrants.

Very truly yours,

CARLA J. STOVALL

Attorney General of Kansas

Donna M. Voth

Assistant Attorney General

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