Michigan Advisory Opinions October 02, 1980: AGO 5793 (October 2, 1980)

AGO 5793.

You have requested my opinion concerning possible conflicts between certain sections of the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1000 et seq and the provisions of 1968 PA 351, Sec. 1; MCLA 45.411; MSA 5.1102(1) providing for compensation to county boards, departments, authorities and commissions. Rephrased, your questions ask:

1. How may the provisions of Secs. 24f, 24h, 28 and 830 of the Michigan Election Law, supra, be reconciled with Sec. 1 of 1968 PA 351, supra?

2. In light of the provisions in Sec. 24f and 24h, may a county board of commissioners promulgate rules limiting travel reimbursement to expenditures which are incurred outside of the county's geographical limit?

3. May members of county boards of canvassers be compensated pursuant to Sec. 24f and 24g by the county for attending Department of State training classes?

4. May county boards of commissioners withhold compensation for attendance at training classes?

Sections 28 and 830 of the Michigan Election Law, 1954 PA 116; MCLA 168.28, MCLA 168.830; MSA 6.1028, MSA 6.1830 are original sections of the law and provide for the compensation of members of county boards of canvassers. These sections read, in full, as follows:

'Sec. 28. Members of the various boards of election commissioners and boards of canvassers and any other person charged with duties in connection with the conduct of primaries, elections, canvassing of returns and recounts shall receive such compensation as shall be determined by the legislative body of the state, county, city, township or village, as the case may be.'

'Sec. 830. Each county canvasser and county clerk shall receive such reasonable compensation for services performed pursuant to the provisions of this act as shall be allowed by the board of supervisors or county auditors, which compensation shall be paid out of the treasury of the county.'

Section 24f of 1954 PA 116; MCLA 168.24f; MSA 6.1024(6), which also addresses the question of compensation to be paid to county boards of canvassers, was added to the Michigan Election Law by 1963 PA 237 and originally pertained to all counties regardless of size. Section 24f, supra, was amended by 1966 PA 81 and made applicable only to counties under one million in population. 1966 PA 81 also added Sec. 24h to the Michigan Election Law, 1954 PA 116; MCLA 168.24h; MSA 6.1024(8), to cover compensation to be paid to boards of canvassers in counties with populations over one million. Sections 24f and 24h, supra, read, in full, as follows:

'Sec. 24f. In counties of less than 1,000,000 population, the members of the board of county canvassers shall receive actual and necessary expenses incurred in the performance of their official duties, and in addition shall be paid the same daily rate as is paid the members of the board of supervisors (fna1) for meetings. Payments for meetings and reimbursement of expenses shall be paid by the county treasurer upon the warrant of the county clerk.'

'Sec. 24h. In counties having a population over 1,000,000, the members of the board of county canvassers shall receive actual and necessary expenses incurred in the performance of their official duties, and in addition shall be paid a daily rate of $25.00 for meetings and $50.00 for recounts. Payments for meetings, recounts and reimbursement of expenses shall be paid by the county treasurer upon the warrant of the county clerk.'

It should be noted that the Michigan Election Law, supra, Sec. 682, also provides a method by which county boards of canvassers are compensated and states as follows:

'Any person employed as an inspector of election, or in any other official capacity at any election, primary election, or on any board of canvassers or board of registration, shall, except as herein otherwise specifically provided, receive such reasonable compensation as may be allowed by the township board of any township, board of supervisors of any county or the legislative body of any city or village, as the case may be.'

The issue of compensation to be paid to county boards of canvassers was addressed by 1968 PA 351, Sec. 1, supra, which reads, in full, as follows:

'Notwithstanding any other provisions of law, members of county boards, departments, authorities and commissions receiving statutory compensation the same as members of boards of supervisors shall receive compensation as determined by the board of supervisors.' (Emphasis added.)

Sections 28, 682 and 830 of the Michigan Election Law, supra, and 1968 PA 351, Sec. 1, are consistent with each other but are inconsistent when compared to the provisions of Sec. 24f and Sec. 24h. The primary conflict exists between 1954 PA 116, Sec. 24f and Sec. 24h, supra, and 1968 PA 351, Sec. 1, supra.

One of the principles of statutory construction is a presumption against repeal by implication between conflicting statutes. The rationale supporting the presumption is that had the legislature intended that one act repeal another act, it would have expressly provided for such in the later measure. If a repugnancy exists such that the conflicting statutes may not stand together, the last expression of the Legislature must control. Southward v Wabash Railroad Co, 331 Mich 138; 49 NW2d 109 (1951); Jackson v Corrections Commission, 313 Mich 352; 21 NW2d 159 (1946). See also OAG, 1965-1966, No 4505, p 341 (August 8, 1966), and OAG, 1967-1968, No 4604, p 269 (July 26, 1968).

Therefore, 1968 PA 351, Sec. 1, supra, having been passed in 1968, is controlling as to the amount of compensation to be paid to members of county boards of canvassers regardless of the size of the county in which they are functioning.

It is my opinion that boards of county commissioners in counties of less than one million are free to establish the compensation to be paid to members of county boards of canvassers at rates different from those provided for in Michigan Election Law, Sec. 24f, supra. In counties with a population of one million or more, the compensation of members of the board of county canvassers is fixed by the Michigan Election Law, Sec. 24h, supra.

Turning to your second question, when an inconsistency exists between two statutes and causes a repeal by implication, the earlier statute is repealed only to the extent of the inconsistency. In re Lambrecht, 137 Mich 450; 100 NW 606 (1904). Since 1968 PA 351, Sec. 1, supra, only addresses itself to the determination of compensation of members of county boards of canvassers, that portion of Section 24f of the Michigan Election Law, supra, providing for reimbursement for actual and necessary expenses which occur in the performance of the canvassers' official duties is not repealed by implication and remains binding upon county boards of commissioners.

Thus, the remaining portions of the Michigan Election Law, Sec. 24f, supra, give county boards of canvassers a clear statutory right to receive reimbursement for the actual and necessary expenses they incur while in the performance of their official duties. The refusal of boards of county commissioners to allow payment of expenses for the performance of duties by boards of county canvassers within the geographical limits of a particular county would frustrate the performance of the duties of board members since these duties are performed primarily within the county in canvassing elections and conducting recounts.

Therefore, in answer to your second question, it is my opinion that county boards of commissioners may not limit travel reimbursement only to expenditures which occur outside the geographical limits of the particular county.

Addressing your third and fourth questions, the Secretary of State, under the authority conferred upon that office by the Michigan Election Law, supra, Sec. 21, to maintain supervisory control over local election officials, has the authority to require that training classes be held for county boards of canvassers. I have been advised by your Elections Division that training sessions for county boards of canvassers are neither required nor held by that Division.

Any decision by the Secretary of State to conduct formal training sessions for members of county boards of canvassers or require that county clerks hold such training sessions must be reviewed in light of the following provisions of Const 1963, art 9, Sec. 29:

'The state is hereby prohibited from reducing the state financed proportion of the necessary costs of any existing activity or service required of units of Local Government by state law. A new activity or service or an increase in the level of any activity or service beyond that required by existing law shall not be required by the legislature or any state agency of units of Local Government, unless a state appropriation is made and disbursed to pay the unit of Local Government for any necessary increased costs. The provision of this section shall not apply to costs incurred pursuant to Article VI, Section 18.'

Since training classes were neither regularly provided nor required by the Secretary of State prior to the effective date of Const 1963, art 9, Sec. 29, which is December 12, 1978, it is my opinion that to require such classes at this time would also necessitate that all costs be funded by a state appropriation.

It is, therefore, my opinion that if attendance of members of a county board of canvassers at the training classes is merely optional, county boards of commissioners may, under the authority derived from 1968 PA 351, Sec. 1, supra, authorize the payment of a per diem compensation and the reimbursement of actual and necessary expenses for members of county boards of canvassers who attend such training classes.

Frank J. Kelley

Attorney General

a1. Now the county board of commissioners, 1974 PA 87; MCLA 46.1; MSA 5.321.