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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. 5914

June 4, 1981

TOWNSHIPS:

Authority of township board over township constable

Elimination of office of township constable

A township board may determine at least six months prior to the township election that no constable shall be elected at the next township election.

The township board, by duly enacted ordinance, may restrict the authority of a township constable to carry a weapon.

Honorable Donald E. Bishop

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following questions:

'1. Is it necessary for a Township to have a constable or constables?

'2. Does the Township Board have the authority to limit the right of a constable to carry a weapon while in the employment of or on duty for the Township?'

Const 1908, art 8, Sec. 18, provided for the election of a township constable as one of the constitutional officials of a township. Const 1963, art 7, Sec. 18, provides for the election of township officials, but omits the office of constable. Therefore, there is no constitutional requirement that townships have a constable.

1954 PA 116, Sec. 358, as amended by 1980 PA 112; MCLA 168.358; MSA 6.1358, reads in pertinent part:

'(1) In every township there shall be a general November election in each even numbered year for the election of officers and the submission of propositions, as provided by law. At the 1980 general election there shall be elected by ballot the following township officers: A supervisor; a clerk; a treasurer; 2 trustees; not more than 4 constables; and, if authorized by law and after a township takes the actions provided in section 11 of Act No. 164 of the Public Acts of 1877, as amended, being section 397.211 of the Michigan Compiled Laws, 6 free public library directors; and, after a township takes the actions provided in section 1 of Act No. 271 of the Public Acts of 1931, as amended, being section 41.441 of the Michigan Compiled Laws, 6 park commission members. The order of offices on the township portion of the ballots shall be the same as the officers are here listed.

'(2) The number of constables to be elected shall be determined by the township board not less than 6 months before the township primary election preceding the general election at which the constables are to be elected. If a determination as to the number of constables to be elected is not made by the township board, 2 constables shall be elected.'

[Emphasis added.]

Prior to being amended by 1978 PA 5, 1954 PA 116, Sec. 358, supra, provided, in pertinent part:

'In every township there shall be a general November election in each even numbered year at which there shall be elected by ballot the following township officers: A supervisor, a clerk, a treasurer, 2 trustees, and at least 1 but not to exceed 4 constables. The order of offices on the township portion of the ballot shall be the same as the officers are here listed.

'The number of constables to be elected shall be determined by the township board at least six months prior to the township election. If no determination as to the number of constables to be elected is made by the township board, 2 constables shall be elected.'

[Emphasis added.]

A similar question was considered in a letter opinion to State Representative Michael J. Griffin dated April 21, 1980, and it was concluded:

'The only substantive change made by the Legislature in this statute, in the context of your question, was the deletion of the language 'at least one,' from the first paragraph of 1954 PA 116 Sec. 358, supra, emphasized above. The statute remains unchanged as to the maximum number (four) of constables allowed, and as to the number required (two) if no determination is made. Prior to the 1978 amendment, the township board was required to provide for a minimum of one constable, and could determine to have up to four constables in the township. When the Legislature deleted the requirement that there be at least one constable elected in the township, it intended to effect a change in the statute. Strong v Daniels, 3 Mich 466 (1855). The intent of the Legislature in making such a change was to empower the township board to determine that no constable be elected in the township at the next general election. Thus, the township board may determine that the township electors shall elect no constable, one constable, two constables, three constables or four constables at the next township election. If it does not make this determination not less than six months before the township election, the statute requires that two constables be elected at such election. Therefore, the provision for two constables when no determination is made, would not be construed as a provision for a minimum of two. The township board is, therefore, authorized by 1978 PA 5 to determine that no constables, one constable, two constables (by express determination or refraining from determination), or a maximum of four constables be elected at the next general election in the township.'

It is my opinion, therefore, that a township board may determine at least six months prior to the township election that no constable shall be elected at the next township election.

In regard to your second question, 1846 RS, ch 16, Sec. 82, as amended by 1976 PA 426; MCLA 41.82; MSA 5.74, provides in pertinent part:

'[A] township board, by ordinance, may restrict or limit the powers of a township constable prescribed by state law. . . .'

Therefore, in answer to your second question, it is my opinion that a township board, by ordinance, may restrict the right of a constable to carry a weapon.

Frank J. Kelley

Attorney General


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