Michigan Advisory Opinions August 19, 1981: AGO 5962 (August 19, 1981)

AGO 5962.

You have written in connection with the conclusion reached in OAG, 1981-1982, No 5849, p 36 (January 30, 1981).

OAG, 1981-1982, No 5849, supra, examined the conflict between 1909 PA 238, ch 4, Sec. 8, as amended by 1951 PA 50; MCLA 224.8; MSA 9.108 and 1954 PA 116, Sec. 269, as amended by 1968 PA 158; MCLA 168.269; MSA 6.1269 concerning the filling of a vacancy in the office of member of an elected company road commission. The opinion concluded that the last expression of the Legislature must control.

Your question relates to the length of the term of the person appointed to fill the vacancy.

You have advised me that the original road commissioner was elected for a six year term in the November, 1978 general election, then vacated his office in July, 1980, a time less than 150 days prior to the November, 1980 general election.

An analagous situation was considered in OAG, 1973-1974, No 4809, p 124, 126 (February 11, 1974) concerning the filling of a vacancy in the office of prosecuting attorney where two statutes concerning the subject were in conflict. After resolving the conflict in favor of the later enacted statute, the opinion concluded that:

'. . . Therefore, if the successor is appointed to fill the vacancy in the office of prosecuting attorney occurring more than 150 days before that election, such appointee will serve only until a successor is elected at the 1974 general election. The elected successor will serve for the remainder of the term to which the prosecutor was elected in 1972.'

Applying this ruling to the facts at hand, it is my opinion that since the vacancy occurred less than 150 days before the November, 1980 general election and the next general election in November, 1982 is not the general election in which a road commissioner is ordinarily elected, the appointee serves as a road commissioner until the November, 1982 general election at which time a successor must be elected to serve the remainder of the term to which the orginal road commissioner was elected n 1978. To this extent, OAG, 1981-1982, No 5849, supra, is modified.

Frank J. Kelley

Attorney General