Michigan Advisory Opinions January 06, 1998: AGO 6964 (January 6, 1998)

AGO 6964.

You have asked whether a statute or a constitutional amendment is necessary in order to prescribe qualifications for the office of county sheriff.

The constitutional office of county sheriff was created by the people in Const 1963, art 7, § 4, which states as follows:

There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law. The board of supervisors in any county may combine the offices of county clerk and register of deeds in one office or separate the same at pleasure.

See also, Const 1835, art 7, § 4; Const 1850, art 10, § 3; and Const 1908, art 8, § 3, for predecessor provisions fixing the constitutional nature of that office. The office of sheriff is addressed in Const 1963, art 7, §§ 5 and 6, relating to the geographical location of the sheriff's offices, the posting of security and the prohibition against simultaneously holding any other office. None of these constitutional provisions, however, establish specific qualifications for election to the office of sheriff.

The question of the Legislature's authority to prescribe qualifications for the constitutional office of circuit judge was considered in Attorney General, ex rel Cook v O'Neill, 280 Mich 649, 658; 274 NW 445 (1937). There, the election of the defendant to the office of Saginaw County circuit judge was challenged for failure to comply with 1935 PA 107, section 40, which required a candidate for the office of circuit judge to be admitted to practice law for a period of at least eight years. The court declared the statute unconstitutional, holding that the Legislature could not, by statute, prescribe qualifications for that constitutional office beyond those found in the constitution. See also, People, ex rel Hughes v May, 3 Mich 598 (1855). When the Legislature itself establishes a public office, however, it may prescribe qualifications for election to that office. People, ex rel Wexford County v Kearney, 345 Mich 680, 688; 77 NW2d 115 (1956).

OAG, 1961-1962, No 3588, pp 50, 52 (February 22, 1961), relying upon the decision in O'Neill, supra, concluded that the Legislature could not prescribe qualifications for the constitutional office of delegate to the constitutional convention, created by Const 1908, art 17, § 4. This constitutional provision establishing the office of delegate set forth no qualifications for that office. Citing Attorney General v Abbott, 121 Mich 540, 542, 80 NW 372 (1899), the opinion noted that it was understood that candidates would have to be qualified electors.

The decision in O'Neill, supra, was also followed in OAG, 1965-1966, No 4530, pp 300, 308 (June 1, 1966), which concluded that under the Michigan Constitution, the Legislature has no power to prescribe qualifications for the constitutionally established office of superintendent of public instruction.

Applying these authorities, it must be concluded that prescribing qualifications for the constitutional office of county sheriff can be accomplished only by constitutional amendment.

It is my opinion, therefore, that the Legislature lacks authority to prescribe qualifications for the constitutional office of county sheriff. It is my further opinion that a constitutional amendment is necessary in order to prescribe qualifications for such office.

FRANK J. KELLEY

Attorney General