Michigan Advisory Opinions January 30, 1981: AGO 5849 (January 30, 1981)

AGO 5849.

You have requested my opinion on the following question:

When a vacancy is created in the office of member of an elected county road commission, does the person appointed to fill the vacancy hold his or her office for the unexpired term or only until the next general election?

1909 PA 238, ch 4, Sec. 8, as amended by 1951 PA 50, MCLA 224.8; MSA 9.108, provides:

'In case a vacancy shall occur in the office of county road commissioner, the board of supervisors (fna1) shall appoint a commissioner to fill such a vacancy, who shall hold office for the unexpired portion of the term in which the vacancy occurs. Each commissioner shall hold his office until his successor is elected or appointed and qualified. . . .'

However, in 1954 PA 116, Sec. 269, as amended by 1968 PA 158; MCLA 168.269; MSA 6.1269, the Legislature has provided that:

'Whenever a vacancy shall occur in the office of county road commissioner, a qualified person to fill said vacancy shall be appointed by the board of supervisors of said county. The person so appointed . . . shall hold such office for the remainder of the unexpired term and until his successor shall have been elected and qualified. However, in counties in which county road commissioners are elected, if the next general election is to be held more than 150 days after the vacancy occurs, and it is not the general election at which a successor in office would be elected if there had been no vacancy, the person appointed shall hold office only until a successor is elected at such general election, held more than 150 days after the vacancy occurs, in the manner provided by law and qualifies for office. Such successor shall hold the office for the remainder of the unexpired term.' (Emphasis added.)

It is significant to note that the underscored portion of 1954 PA 116, Sec. 269, supra, was added by 1968 PA 156, while 1909 PA 238, ch 4, Sec. 8, supra, has not been amended since 1951.

Thus, 1909 PA 283, ch 4, Sec. 8, supra, provides that a vacancy either on an elected or appointed road commission, is filled by appointment of the board of county commissioners for the full unexpired term, while 1954 PA 116, Sec. 269, supra, the later enactment, provides that in the case of vacancies on an elected road commission, the appointee must stand for election in order to complete the unexpired term if the vacancy occurs more than 150 days before a general election. The two provisions are in conflict as to the length of the term a person appointed to a vacancy in the office of member of an elected board of road commissioners will serve, depending upon the time when the vacancy occurs.

It is a principle of statutory construction that there 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 therefor. 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); OAG, 1965-1966, No 4505, p 341 (August 8, 1966), OAG, 1967-1968, No 4604, p 269 (July 26, 1968), and OAG, 1979-1980, No 5793, p 1024 (October 2, 1980).

Since 1954 PA 116; MCLA 168.1 et seq; MSA 6.1001 et seq, is a complete act in and of itself relating to elections, the enactment of 1968 PA 156 to amend 1954 PA 116, Sec. 269, supra, does not violate Const 1963, art 4, Sec. 25. OAG, 1975-1976, No 4868, p 97 (June 5, 1974).

It is, therefore, my opinion that a vacancy in the office of member of an elected county road commission may be filled for the unexpired term, unless it occurs more than 150 days before a general election, in which case the vacancy is filled only for a term to expire when a successor is elected at the next general election.

Frank J. Kelley

Attorney General

a1. Now the county board of commissioners, 1974 PA 87, Sec. 1; MCLA 46.1; MSA 5.321. EDITOR'S NOTE:

The reader should be aware of OAG, 1981-1982, No 5962 (August 19, 1981), found on page 324 of this volume, which, in part, modifies this opinion.