The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5524

July 13, 1979

COUNTIES:

Power of board of county road commissioners to contract with other governmental bodies

SCHOOLS AND SCHOOL DISTRICTS:

Power of board of education to contract with board of county road commissioners

A board of county road commissioners may contract with the board of county commissioners for the county fair board or with the board of education of a school district for the purpose of maintaining and improving roads, parking lots, driveways and sidewalks of such governmental body.

Honorable James DeSana

State Senator

The Capitol

Lansing, Michigan 48933

You have requested my opinion on the question of whether a county board of road commissioners may enter into a contract with another governmental entity, such as the county board of commissioners for the county fair board or a school district, for the purpose of maintenance and improvements of roads, parking lots, etc., not under the jurisdiction of the county board of road commissioners, provided that the county board of road commissioners is reimbursed by the governmental entity for all work performed and materials used.

Const 1963, art 7, Sec. 16 provides, in pertinent part:

'. . . The legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports; may provide for county road commissioners to be appointed or elected, with powers and duties provided by law. . . .'

OAG, 1975-1976, No 4985, p 503 (June 12, 1976), held that the board of county road commissioners acts as an administrative board with the limited function of formulating policy and performing official duties imposed by law and delegated by the county board of commissioners. 1909 PA 283, MCLA 220.1 et seq; MSA 9.101 et seq, Chap 4, Sec. 9.

Accordingly, a county and its board of commissioners or a board of county road commissioners have only such powers as have been granted to them by the Constitution or the state legislature. (1)

The general highway law, 1909 PA 283, supra, Chap 4, Sec. 21, specifically provides that it is 'the duty of the counties to keep in reasonable repair, so that they shall be reasonably safe and convenient for public travel, all county roads, bridges, and culverts that are within their jurisdiction and under their care and control, and which are open to public travel. . . .'

In OAG, 1943-1944, No 0-303, p 306 (March 3, 1943), the Attorney General concluded that a board of county road commissioners was not authorized to do work for or enter into contracts to work for private individuals for hire.

In OAG, 1947-1948, No 289, p 281 (May 9, 1947), a similar question was again presented and it was held that a board of county road commissioners could not enter into a contract with a private association to maintain private roads used by the association, since there was no statutory authority to do so.

The snow removal from private ways act, 1956 PA 387, Sec. 1, MCLA 247.361; MSA 9.140(1), provides that the board of county road commissioners may contract to remove snow from private driveways and roads after certain conditions had been met. However, this provision is only applicable to counties in the Upper Peninsula.

In addition, the state trunk line highway system act, 1951 PA 51, Sec. 12(14), MCLA 247.662(14); MSA 9.1097(12)(14), as amended, provides that:

'A county road commission may enter into an agreement with a county road commission of an adjacent county and with a city or village to perform work on a highway, road, or street, and with the state transportation commission with respect to a state trunk line and connecting links of the state trunk line within the limits of the county or adjacent to the county. The agreement may provide for the performance by each contracting party of the work contemplated by the contract including engineering services and the acquisition of right of way in connection with the work contemplated, by purchase or condemnation, by any of the contracting parties in its own name and the agreements may provide for joint participation in the costs.'

The above provision, though, does not authorize a county road commission to enter into a contract with another governmental entity, such as a school district, to maintain or improve roads or parking lots which are not under the commission's jurisdiction.

Consideration must be given to 1951 PA 35, Sec. 2, MCLA 124.2; MSA 5.4082, which provides, in pertinent part, that:

'Any municipal corporation shall have power to join with any other municipal corporation, or with any number or combination thereof by contract, or otherwise as may be permitted by law, for the ownership, operation, or performance, jointly, or by any 1 or more on behalf of all, of any property, facility or service which each would have the power to own, operate or perform separately.'

There is no question that the board of education of a school district may construct roads on school property to provide access to school buildings and to remove snow and ice from such roads. Nor is there any question that a board of county road commissioners has similar powers as to county property.

A 'municipal corporation' is defined in 1951 PA 35, Sec. 1, MCLA 124.1; MSA 5.4081, as including a county, school district, public authority, or any other local agency with power to enter into contractual undertakings.

It is clear that under 1951 PA 35, Sec. 2, supra, a board of county road commissioners is a municipal corporation authorized to contract with another governmental authority to provide road building and maintenance services.

Therefore, it is my opinion that a board of county road commissioners may enter into a contract with the board of county road commissioners for the county fair board or with the board of education of a school district for purposes of maintaining and improving roads, parking lots, driveways and sidewalks of such governmental body.

Frank J. Kelley

Attorney General

(1) Brownstone Township v Wayne County, 68 Mich App 244; 242 NW2d 538 (1976).