Michigan Advisory Opinions May 22, 1980: AGO 5711 (May 22, 1980)

Michigan Attorney General Opinions

1980.

AGO 5711.

You have requested my opinion on two matters involving county government within the County of Saginaw. Your first question refers to the legality of the Saginaw County Board of Supervisors (also 'Commissioners') establishing in 1964 the office of county controller where the county simultaneously functioned with an elected county board of auditors with powers prescribed by a local act of the legislature which has not been repealed. Secondly, you inquire as to the legality of the board of supervisors adopting a county act on December 15, 1964, which amended a section of the local act under which the county board of auditors functioned, and which county act conferred certain duties on the county controller with respect to the board of auditors.

The three-member Board of County Auditors for the County of Saginaw was created as an elective office and its duties prescribed by 1903 LA 540, as amended by 1905 LA 567. (fn1) The provisions of amendatory 1905 LA 567, supra, amended Sec. 4 of 1903 LA 540, supra. At the time of the enactment of 1903 LA 540, and amendatory 1905 LA 567, supra, no provision of the 1850 constitution limited the legislature from generally legislating by local act. The provisions of 1908 Const, art 5, Sec. 30, (fn2) circumscribed for the first time the legislature's power to enact local laws. Common Council of the City of Detroit v Engel, 202 Mich 536; 168 NW 462 (1918), distinguished on other grounds, Hart v Wayne County, 396 Mich 259, 266-268; 240 NW2d 697 (1976); Messenger v Teagan, 106 Mich 654; 64 NW 499 (1895).

In Township of Port Huron v Board of Auditors of St Clair County, 269 Mich 326, 328; 257 NW 833 (1934), the Court held that local acts passed prior to 1908 Const, art 5, Sec. 30, supra, were fully effective until repealed by the legislature.

A local act is defined as one

'. . . which operates over a particular locality instead of over the whole territory of the state or any properly constituted class or locality therein, or which operates on particular persons or things in a class, or which relates to the property or persons of a particular locality.' (footnotes omitted) 82 CJS, Statutes, Sec. 168, pp 283-284.'

See also OAG, 1914, p 675, 676 (April 24, 1914).

1903 LA 540, as amended, supra, is comprised of eleven (11) sections. Pursuant to 1903 LA 540, as amended, supra, Sec. 4, it is provided that the Board of Auditors shall meet twice monthly, for two full days each meeting, and that the board 'shall have authority to call for persons and papers and the examination of witnesses relating to any claim . . .' against the county.

Section 6 of 1903 LA 540, supra, provided the County Clerk must tabulate all properly sworn bills against the county, and present such bills to the Board of Auditors at their meetings, and the Board shall then audit and allow all just and reasonable bills against the county. The Board shall also publish an accurate list of names of claimants, the amount claimed, the purpose thereof, and the amount of the allowed claim.

Section 7 of 1903 LA 540, supra, sets forth the procedure for allowance of claims, and, in pertinent part, provides:

'No bills against the county of Saginaw shall be audited or allowed in any other manner than provided for in this act, except the bills of the county drain commissioner and such expenditures as may be authorized by the board of supervisors of said county at any regular, special or adjourned session thereof, where payment shall be provided for in the resolution authorizing the same.' [Emphasis supplied.]

Under section 7, supra, the legislature expressly reserved authority in the board of supervisors to authorize payment of expenditures pursuant to resolution, thereby providing an alternative to approval of claims by the Board of Auditors.

The remaining provisions of 1903 LA 540, supra, address other matters relative to the operation of the Board of Auditors within the framework of county government.

The office of Saginaw county controller was established in 1964 by the Saginaw County Board of Supervisors pursuant to 1851 PA 156, Sec. 13-b, MCLA 46.13(b); MSA 5.336, (fn3) which at that time provided that boards of supervisors, in counties of more than 75,000 inhabitants, may upon majority vote of the board appoint a county controller. At the time of the establishment of the office of Saginaw county controller in 1964, the provisions of 1851 PA 156, Sec. 13-b, supra, pertinently provided:

'. . . Said county controller shall be the chief accounting officer of the county and shall have charge and supervision of the accounts and accounting of every office, officer and department of the county, the whole or any part of the expense of which are borne by said county. It shall be the duty of said controller to see that a system of accounting is installed and properly kept by every office, officer and department of the county in strict accord with the provisions of law, and in addition to which he may prescribe and direct the keeping of such other accounts and records and the making of such reports as in his judgment are necessary to properly record and report the financial transactions of the county. All county officers or employes shall furnish such information respecting all county matters in their charge as the county controller shall require. It shall be the duty of said controller to keep in his office a general ledger in which shall be set up controlling accounts which shall show at all times the assets and liabilities of said county, and of each and every of its funds. It shall also be the duty of said controller to examine regularly the books and accounts of the several officers, agents and departments of the county and to report his findings to the board of supervisors at such time or times as they shall prescribe. It shall likewise be the duty of said county controller to make all purchases of books, stationery, materials and supplies which may be required by the county or its officers and agents, the purchase of which is not otherwise provided for by law, and no contract or order for the purchase of any such materials or supplies shall be valid or binding upon the county, nor shall the county be liable for the purchase price thereof, except upon the written order of said county controller: Provided, That this provision shall not apply to any contract or purchase which may be ordered by the board of supervisors at any regular, adjourned or special session thereof, wherein payment is provided by the resolution authorizing such contract or purchase. Said county controller shall be the custodian of and have charge of the operation, maintenance and repairs of the county court house and grounds, including any power, heating or lighting plant in connection therewith, and in like manner the repairs to the county jail. He shall not, however, create any liability in excess of the appropriations theretofore made by the board of supervisors. Said county controller shall perform such other duties as the board of supervisors may impose.' (Emphasis supplied.)

No provision of 1851 PA 156, Sec. 13-b, supra, as it existed in 1964 at the time of the creation of the office of Saginaw county controller, or as last amended by 1969 PA 49, supra, fn3, precludes a county board of commissioners from creating the office of controller where the county simultaneously has an elected board of auditors established under a local act of the legislature. Correspondingly, no provision of 1903 LA 540, as amended, supra, precluded the Saginaw County Board of Supervisors, in its discretion, from creating the office of controller in 1964.

It is observed that in section 7 of 1903 LA 540, supra, and in 1851 PA 156, Sec. 13-b, supra, there is expressly reserved in the board of supervisors the independent power to authorize payment of expenditures pursuant to resolution.

The legislature was cognizant of the fact there are counties, such as Saginaw County, which have both an elected Board of Auditors as well as a County Controller. 1851 PA 156, Sec. 13-b, supra, as last amended by 1969 PA 49, declares:

'The board of supervisors in any county other than counties operating under elected boards of auditors unless presently operating with a county controller, by a majority vote of its members-elect, may appoint a county controller or board of auditors . . .' [Emphasis supplied.]

At the time 1969 PA 49 amended 1851 PA 156, Sec. 13-b, supra, Saginaw County was operating with an elected Board of County Auditors and was also 'presently operating with a county controller'. (fn4) Thus, the legislature was aware that one or more counties were operating with both an elected board of county auditors and a county controller, and permitted such a practice.

Therefore, in response to your first question, it is my opinion the Saginaw county board of supervisors possessed the discretionary authority to establish the office of county controller in 1964, pursuant to authorization provided by 1851 PA 156, Sec. 13-b, supra, while the county simultaneously functioned with an elected county board of auditors pursuant to a local act of the legislature, with the county controller and board of auditors each possessing prescribed powers.

Your second injury concerns whether the county board of supervisors possessed the authority to enact a county act amending the local act providing for the county board of auditors, thereby conferring certain duties and functions on the county controller.

Following establishment in 1964 of the office of county controller, the Saginaw County Board of Supervisors, on December 15, 1964, adopted a county act pursuant to 1851 PA 156, supra, Sec. 11, which at that time provided in relevant part that boards of supervisors possessed powers to:

'. . .

'Thirteenth, . . . to amend any local act of the legislature in force in their county and referring to matters within the jurisdiction of such board of supervisors or touching the local powers and duties of county officers, but the board of supervisors shall not have power to increase or extend its own powers, duties or jurisdiction. . . .' (fn5)

The county act of December 15, 1964, adopted pursuant to 1851 PA 156, Sec. 11, supra, sought to amend in its entirety section 6 of 1903 LA 540, supra, (fn6) which in establishing certain powers of the Board of Auditors, declared:

'It shall be the duty of the county clerk to tabulate all bills presented against the county of Saginaw that are properly sworn to by the claimant, and place the same in the hands of the board of county auditors at each of their said meetings, who shall proceed to audit and allow all just and reasonable bills against said county on the same conditions as bills are now allowed by the board of supervisors of said county. It shall be the duty of said board of auditors to provide by contract with the lowest responsible bidder for the publication of an accurate list of all claims allowed by said board, in one daily newspaper printed in the English language and in one weekly newspaper printed in the German language, having a circulation in said county. [sic] The published lists to show the name of the claimant, the amount claimed, and for what purpose, and the amount at which the claim was allowed.'

The December 15, 1964, county act of the Saginaw County Board of Supervisors which sought to amend in its entirety 1903 LA 540, Sec. 6, supra, provided:

'It shall be the duty of the county controller to tabulate all bills presented against the county of Saginaw that are properly sworn to by the claimant, and place the same in the hands of the Board of County Auditors at each of their said meetings, and said board shall then proceed to audit and allow all just and reasonable bills against said County. Said Board of Auditors shall prepare on or before the 10th day of each month, a statement signed by the Clerk of said Board of all claims passed upon by the Board during the preceding month. Copies of the statement shall be on file and available for inspection only by the public at the Clerk's office.'

Thus, it must be determined whether the county act of December 15, 1964, was consistent with the then-prevailing provisions of 1851 PA 156, Sec. 11, supra, which provided a county board of supervisors may amend a local act of the legislature, subject to certain restrictions.

However, prior to making that determination, the threshold question of whether the legislature may constitutionally empower a county board of commissioners to amend a local act of the legislature must be resolved.

Const 1963, art 4, Sec. 29, which succeeded 1908 Const, art 5, Sec. 30, supra, provides:

'The legislature shall pass no local or special act in any case where a general act can be made applicable, and whether a general act can be made applicable shall be a judicial question. No local or special act shall take effect until approved by two-thirds of the members elected to and serving in each house and by a majority of the electors voting thereon in the district affected. Any act repealing local or special acts shall require only a majority of the members elected to and serving in each house and shall not require submission to the electors of such district.'

It is clear that under Const 1963, art 4, Sec. 29, supra, only the legislature may enact or repeal a local act. The legislature has not repealed 1903 LA 540, as amended, supra. Further, where the legislature seeks to amend a local act, the amendatory provisions must be submitted to and approved by a majority of the electors in the district affected, fn 1 supra. Common Council of the City of Detroit v Engel, supra (construing Const 1908, art 5, Sec. 30); Common Council of the City of Detroit v Engel, 202 Mich 544; 168 NW 465 (1918); Monroe v Judge of Police Court of Grand Rapids, 311 Mich 76; 18 NW2d 371 (1945). The constitutional limitation on local acts is to be viewed expansively. Common Council of the City of Detroit, supra. 202 Mich 536, 543.

Clearly, under 1908 Const, art 5, Sec. 30, supra, and Const 1963, art 4, Sec. 29, a county board of commissioners may not enact a local act. Correspondingly, a county board of supervisors has no power to repeal a local act by abolishing a county board of auditors created by local act. Brown v Hill, 216 Mich 520, 526; 185 NW 751 (1921); 1 OAG, 1955, No 2009, p 185 (April 13, 1955).

The power of a board of supervisors to amend a local act of the legislature, as provided in 1851 PA 156, Sec. 11, supra, was added to the statute by amendatory 1909 PA 322, Sec. 11, clause 13, which pertinently provided:

'. . . [B]oards of supervisors shall have power . . .:

Thirteenth, . . . to amend any local act of the legislature in force in their county and referring to matters within the jurisdiction of such board of supervisors or touching the local powers and duties of county officers, but the board of supervisors shall not have power to increase or extend its own powers, duties or jurisdiction, . . .'

Amendatory 1909 PA 322, Sec. 11, clause 13, supra, authorizing the amendment of local acts by a board of supervisors, was enacted after the people had spoken to restrict local act legislation by the adoption of 1908 Const, art 5, Sec. 30, supra.

In OAG, 1910, p 208, 209 (March 9, 1910), it was held that 1909 PA 322, Sec. 11, clause 13, supra, was unconstitutional insofar as it attempted to confer upon boards of supervisors the power to pass laws, a power which constitutionally is vested only in the legislature.

1851 PA 156, Sec. 11, as amended by 1909 PA 322, supra, was next amended by 1913 PA 397, the language pertinently providing that a board of supervisors may amend a local act not being altered.

OAG, 1917, p 228 (November 24, 1916), held that it was unconstitutional, in light of 1908 Const, art 5, Sec. 30, supra, for the legislature to attempt to vest in boards of supervisors the power to amend a local act passed by the legislature, as embodied in 1851 PA 156, Sec. 11, clause 13, as amended by 1913 PA 397, supra. OAG, 1917, supra, pp 228-229, states in relevant part:

'. . . Section 30 of article V of said Constitution [1908] forbids the legislature to pass a local or special act in any case where a general act can be made applicable, and further specifies that:

'No local or special act shall take effect until approved by a mojority [sic] of the electors voting thereon in the district to be affected.'

'Under this provision, it would not be competent for the legislature to amend this local act as passed in 1905 if a general law could be made applicable; and in no event could such amendment, if adopted, by the legislature itself, become effective until a majority of the electors of Saginaw County had approved the same. It would seem apparent, therefore, that the legislature in seeking to empower boards of supervisors to amend local acts, has really attempted to authorize the doing by the local board of that which the legislature itself is prohibited from doing. Such being the case, I see no escape from the conclusion that the 13th subdivision of the amending act of 1913, above referred to, is invalid insofar as it attempts to empower any board of supervisors to do what the Saginaw Board has sought to do in this instance. I am constrained to the opinion, therefore, that the Governor should withhold his approval from this act.

'I wish to call your attention also to an opinion rendered by Judge Bird when Attorney General, and which is found on page 208 of the Annual Report of this Department for the year 1910. It was therein suggested that it is not competent for the legislature to confer upon boards of supervisors the right to enact local laws. You will note that one of the particular measures there considered was in the form of an amendment to a local act passed by the legislature; in other words, it was of precisely the same nature as the measure here involved.' [Emphasis supplied.]

The reasoning and conclusion of OAG, 1917, supra, holding unconstitutional under 1908 Const, art 5, Sec. 30, supra, the power of a board of supervisors to amend a local act of the legislature, are equally applicable in the instant situation under Const 1963, art 4, Sec. 29, supra. Thus, that portion of 1851 PA 156, Sec. 11, as last amended by 1978 PA 629, supra, fn 5, which provides that a county board of commissioners may amend a local act of the legislature, being repugnant to Const 1963, art 4, Sec. 29, supra, is unconstitutional. The remainder of 1851 PA 156, supra, being a complete act, independent and capable of being executed as intended by the legislature, remains constitutional and effective. People v McMurchy, 249 Mich 147; 228 NW 723 (1930). Thus, the defective portion may be severed from 1851 PA 156, Sec. 11(m), supra, fn 5, without invalidating the entire act. Further, OAG, 1949-1950, No 1219, p 570, 571 (May 31, 1950) is not controlling to the extent it is inconsistent with this opinion.

Therefore, in light of the above, the Saginaw County Board of Supervisors' county act of December 15, 1964, purporting to amend section 6 of 1903 LA 540, supra, pursuant to 1851 PA 156, Sec. 11, clause 13, supra, is null and void. Under Const 1963, art 4, Sec. 29, supra, only the legislature may enact, amend, or repeal a local act.

Frank J. Kelley

Attorney General

1. 1919 LA 10 and 1921 LA 4 sought to further amend 1903 LA 540, as amended, supra. However, pursuant to 1908 Const, art 5, Sec. 30, as amended at the general election in November, 1916, amendatory 1919 LA 10 and 1921 LA 4 did not receive approval by a majority of Saginaw County electors at the elections held November, 1919 and on November 7, 1922, and thus, the amendatory provisions never became operative. Records of Secretary of State, State Documents Division.

2. Const 1908, art 5, Sec. 30, was further amended by Joint Resolution No. 2 of 1915, ratified by the electors at the November, 1916 election.

3. 1851 PA 156, Sec. 13-b, supra, whose provisions were added by amendatory 1927 PA 257, was last amended by 1969 PA 49.

4. The inclusion of the phrase 'unless presently operating with a county controller' was not inadvertently included in 1969 PA 49. The history of this amendment reveals that after the initial bill was introduced in the house, Representative Stempien moved to amend its language by striking out 'in any county' and inserting 'in any county other than counties operating under elected Board of Auditors.' 1 HJ 931 (April 4, 1969). Subsequently, Senator Richardson from Saginaw County introduced an amendment by inserting a comma after the word 'auditors' and adding the phrase 'unless presently operating with a county controller'. (The comma was deleted from the official text). 2 SJ 1575 (June 24, 1969).

5. 1851 PA 156, Sec. 11, supra, as last amended by 1978 PA 629 has restated the above-quoted language to read:

'. . .

'(m) Pass regulations and ordinances relating to county affairs as it considers proper, but which shall not contravene the general laws of the state . . . [to] amend a local act of the legislature in force in the county which refers to matters within the jurisdiction of the county board of commissioners or the local powers and duties of county officers. However, the county board of commissioners shall not increase or extend its own powers, duties, or jurisdiction. . . .'

6. 1903 LA 540, Sec. 6, supra, was not amended by 1905 LA 567, supra.