STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5885

April 22, 1981

CIVIL SERVICE:

Fire and police civil service act

TOWNSHIPS:

Action of electors to approve civil service for nonexistent police department

Approval of a ballot proposal adopting a civil service system for both a township fire department and a police department at a time when only the township fire department existed does not serve as a basis for a civil service system for a police department subsequently established without further vote of the electors extending civil service to such department.

Honorable Roy Smith

State Representative

The Capitol

Lansing, Michigan

Referring to the civil service act for fire and/or police departments, 1935 PA 78; MCLA 38.501 et seq; MSA 5.3351 et seq, you have requested my opinion on the following questions:

Your question refers to Plymouth Charter Township. I am advised that the township electors in 1950 adopted the provisions of 1935 PA 78, supra, which deals with both fire and police departments. At the time 1935 PA 78, supra, was before the electors, Plymouth Township had a fire department, but no police department. At the 1950 township election in question, no ballot proposal for establishment of a township police department was before the electors. The Plymouth Township electors approved the ballot proposal. Plymouth Township, which incorporated as a charter township in 1979, has not established a township police department. The Wayne County sheriff has provided police protection, and on February 2, 1981, the township entered into an intergovernmental contract for police protection with the City of Plymouth, pursuant to 1951 PA 35; MCLA 124.1 et seq; MSA 5.4081 et seq.

As enacted, 1935 PA 78, supra, (hereafter 'the Act'), applied only to fire departments, and did not include within its ambit police departments. Amendatory 1945 PA 287 amended the title to the Act so as to embrace members of full paid fire 'and police departments' within its purview. Further, amendatory 1945 PA 287 amended section 1 of the Act to provide for the creation of a Civil Service Commission thirty (30) days after the adoption of the Act in any city, village or municipality 'having a fire and/or police department.' The term 'and/or' has been interpreted as meaning 'either one or both of two methods.' Castro v Dryden Farms, Inc, 79 Mich App 633, 636; 263 NW2d 22 (1977). The changes effected by amendatory 1945 PA 287, supra, in extending the Act to existing full paid police departments, clearly indicates an intent to change existing law. English v Saginaw County Treasurer, 81 Mich App 626; 265 NW2d 775 (1978).

As originally enacted, 1935 PA 78, supra, provided in section 17a thereof that the Act

Thus, as enacted, 1935 PA 78, Sec. 17a, supra, provided that the text of the title to the Act would be inserted in the body of the ballot question. Amendatory 1949 PA 271 amended section 17a of the Act. In pertinent part, amendatory 1949 PA 271 amended section 17a by setting forth the exact text of the title of the Act as then last amended by 1945 PA 287, supra, which provided for the establishment of civil service in municipalities having 'fire and police departments.'

When the civil service ballot proposal was submitted to Plymouth Township electors in 1950, the township had a fire department, but no police department. However, the mandatory ballot question language required under the Act as amended by 1949 PA 271, supra, provided the required language for the ballot question, and referred to fire and police departments. Thus, after the township electors approved the creation of the township Civil Service Commission, the established fire department became subject to the provision of the Act. However, there being no township police department, at the time of the 1950 election, or subsequently, the ballot question with respect to civil service for the township police department must be viewed as a nullity. Statutes are to be construed so as to avoid absurd consequences. King v Director of Midland Co Dept of Social Services, 73 Mich App 253; 251 NW2d 270 (1977).

This conclusion is compelled by the legislative history of the Act and the following construction of the Act's provisions taken in their entirety. See Deshler v Grigg, 90 Mich App 49; 282 NW2d 237 (1979). After the 1950 election in Plymouth Township, the title to the Act was further amended, to provide for the establishment of a board of civil service commissioners in municipalities having fully paid members in the 'fire and/or police department.' Thus, the title to the Act, as amended by 1951 PA 15, indicates that electors of a municipality may vote for civil service in either fire or police department, or both. See Castro v Dryden Farms, Inc, Supra. The title as amended by 1951 PA 15, supra, thus conformed to the language of 1935 PA 78, Sec. 1, as amended by 1945 PA 287, supra, which extended application of the Act to police departments. Thereafter, amendatory 1951 PA 88 as added section 18 to the Act, providing municipal electors the right to rescind and repeal the provisions of the Act with respect to fire and/or police. In an election to rescind and repeal the provisions of the Act, the form of the ballot question was statutorily provided in section 18, as in section 17a, supra. The required ballot question language in the case of rescission and repeal is identical to the title of the Act as amended by 1951 PA 15, supra, indicating the application of the Act to 'fire and/or police departments.' Thus, the Act may be rescinded as to either a fire or police department, or both. However, while the rescission and repeal provisions of section 18 of the Act, as added by 1951 PA 88, precisely conforms to the title of the Act as amended by 1951 PA 15, supra, the Legislature did not conform the required adoption ballot language set forth in section 17a of the Act, supra.

Thus, the adoption ballot language set forth in section 17a of the Act, supra, is in conflict with the ballot form for rescission and repeal set forth in section 18 of the Act, supra, to the extent that the former section deals with 'fire and police departments' and the latter section deals with 'fire and/or police departments.' However, in light of the provisions of section 1 of the Act, which through 1945 PA 287 added police departments as subject to the Act, and the provisions of the Act's title, it is apparent that required adoption ballot language of section 17a of the Act is misleading.

A principal canon of statutory construction is the presumption against repeal by implication between conflicting statutes, or between conflicting provisions within the same statute. Underlying this presumption is the rationale that, had the Legislature intended that one act or provision would repeal another act or provision, it would have expressly so provided in the later statute or provision. However, where a repugnance exists so that the conflicting statutes or provisions may not stand together, the last expression of the Legislature must control. Southward v Wabash Railroad Co., 331 Mich 138; 49 NW2d 109 (1951); OAG, 1979-1980, No 5793, p 1024 (October 2, 1980). Therefore, the adoption ballot language set forth in 1935 PA 78, Sec. 17a, as last amended by 1949 PA 271, supra, must yield to the subsequent expressions of legislative intent referring to fire and/or police departments, as set forth in: (1) section 1 of the Act as amended by 1945 PA 271; (2) the title to the Act as last amended by 1951 PA 15; and (3) the rescission and repeal ballot form set forth in 1935 PA 78, Sec. 18, as added by 1951 PA 88. See Lorraine Cab v City of Detroit, 357 Mich 379; 98 NW2d 607 (1959). Through such construction, the provisions of the Act are harmonious and consistent. Id.

Thus, viewing the Act in its entirety, a municipality may elect to adopt, or rescind and repeal, the provisions of the Act with respect to either fire or police departments, or both. ⁽¹⁾ Further, it must be observed that in the case of Plymouth Township electors voting for the establishment of a Civil Service Commission for fire and police in 1950 when only a fire department existed, the required adoption ballot language with respect to civil service for a nonexistent police department must be viewed as extraneous and of no effect. The electors' approval in 1950 of the ballot question with respect to a nonexistent police department did not of itself compel the township board to establish a police department in order to effectuate the provisions of the Act. Nor does the fact of the electorate's 1950 vote require at this time that in the event a township police department were not to be established that the provisions of the Act would automatically apply to such department. The provisions of the Act authorize a municipality to adopt provisions of the Act with respect to either the fire or police department, or both. Further, the required ballot language contained in the 1950 proposal cannot apply to a nonexistent police department.

In Wayne County Prosecuting Attorney, ex rel Taxpayers v City of Highland Park, 317 Mich 220; 26 NW2d 891 (1947), the electors in Highland Park adopted fire department civil service under the Act in 1936, at a time when the Act applied only to fire departments. At the time the fire department civil service was adopted in 1936, an established police department was also functioning within the city. Subsequently, the Act was amended by 1945 PA 287, supra, to include police departments. The city electors, thereafter, did not vote to extend the provisions of the civil service Act to the police department. The Wayne County Prosecutor sought mandamus against the city to require it to establish police civil service, by virtue of the Act as amended by 1945 PA 287, supra.

The Supreme Court unanimously affirmed the denial of mandamus. The Court ruled that since the electors had never approved extension of the Act to its established police department, the city may not be compelled to extend civil service to its police department. In like manner, the instant case, since no police department existed in Plymouth Township in 1950 at the time the Act was adopted by the township, such vote may not serve as the basis for mandamus to require the township to establish a police department which would be subject to the provisions of the Act. In the event that Plymouth Charter Township, by action of the township board, or its electors, determine to establish a police department at some future date, the provisions of the Act would apply to such police department only if the electors of Plymouth Charter Township vote to extend civil service to such newly established police department, pursuant to section 17a of the Act.

In response to your first question, it is my opinion that since Plymouth Township electors adopted 1935 PA 78 at a time when only a township fire department existed, the Act is not applicable to a police department subsequently established.

In light of my response to your first question, it is not necessary to address your second question.

Frank J. Kelley