[ Previous Page]  [ Home Page ]

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. 6322

November 15, 1985

COUNTIES:

Change of method of selection of county road commissioners from appointment to election

Road commission--term of office of commissioner in county changing method of selection from appointed to elected

In the event that a county board of commissioners changes the method of selection of county road commissioners from appointment to election as authorized by law, each county road commissioner in such county may continue to serve for the balance of his or her unexpired term.

Honorable Timothy Walberg

State Senator

The Capitol

Lansing, Michigan

You have asked if a county board of commissioners' decision changing the county road commission from an appointed to an elected body requires that all the commissioners' positions be filled at the next general election, despite the fact that some commissioners' terms will not expire at the end of the year the election is held.

Three statutes impact your question. The first is MCL 224.6(1); MSA 9.106(1), which provides:

'In any county where the county road system is adopted, a board of county road commissioners consisting of 3 members shall be elected by the people of the county, except as provided in subsection (2). In the first instance, the commissioners shall be appointed by the county board of commissioners or elected at a general or special election called for that purpose, as shall be ordered by the county board of commissioners. . . . However, the election of county road commissioners shall not be mandatory in any county which contains 12 surveyed townships or more, either entire or fractional as determined by the government survey of the county. In such county or counties the county board of commissioners may, by a majority of its members elect, appoint the county road commissioners, . . .. A county road commissioner appointed in that county shall not be removed from office before the expiration of his or her term of office without being given due written notice of the charges made against him or her and an opportunity to appear before the county board of commissioners for a hearing on the charges. . . .' (Emphasis added.)

Subsection (2), concerning a county having a population of 1,500,000 or more which has adopted a charter, is not relevant here.

The second is MCL 224.7; MSA 9.107, which, in pertinent part, provides:

'The term of office of the first commissioners elected or appointed in any county under this act, shall commence immediately upon filing of such oath of office and bond, and shall continue as herein provided. The successor to each such commissioner shall be elected at the general election on the first Tuesday after the first Monday in November preceding the expiration of his term. They shall hold office for 2, 4, and 6 years respectively, from the said first day of January; and thereafter 1 commissioner shall be elected or appointed biennially for the full term of 6 years.' (Emphasis added.)

The third is MCL 224.8; MSA 9.108, which provides:

'In case a vacancy shall occur in the office of county road commissioner, the board of supervisors shall appoint a commissioner to fill such vacancy, who shall hold office for the unexpired portion of the term in which the vacancy occurs. Each commissioner shall hold his office until his successor is elected or appointed and qualified. The board of supervisors shall fix the compensation of such commissioners.' (Emphasis added.)

In MCL 224.6; MSA 9.106, the power to choose between the initial election or appointment of county road commissioners is conferred upon the county board of commissioners. Matthews v Montgomery, 275 Mich 141, 145; 266 NW 300 (1936). Notwithstanding the method of selection chosen, a county board of commissioners in counties containing 12 or more surveyed townships may change the method of selecting county road commissioners from time to time as the county board of commissioners deems advisable. Matthews; Ebright v Buck, 326 Mich 208, 211; 40 NW2d 122 (1949).

While a county board of commissioners may change the mode of selecting county road commissioners from elected to appointed, or from appointed to elected, no Michigan appellate court has addressed the question of whether such a change in the method of selection from appointed to elected operates to require that all the offices of county road commissioners must be filled at the next general election, including the offices occupied by incumbents whose terms have not yet expired.

Analysis of the aforementioned statutes requires preliminary reference to certain constitutional provisions. Const 1963, art 7, Sec. 7 provides that a board of supervisors shall be established in each organized county. The Legislature has changed the name of the county board of supervisors to the county board of commissioners. MCL 46.416; MSA 5.359(16). The county board of commissioners shall have legislative and administrative powers as provided by law. Const 1963, art 7, Sec. 8. It has been held that Const 1963, art 7, Sec. 8 is not self-executing; it merely recites the nature of the powers and duties, leaving the scope thereof to the Legislature. Oakland County Commissioner v Oakland County Executive, 98 Mich App 639; 296 NW2d 621 (1980).

The effect of the action taken by the county board of commissioners to change the method of selection of county road commissioners from appointed to elected is controlled by the statutory scheme established in MCL 224.6-224.8; MSA 9.106-9.108.

MCL 224.6; MSA 9.106, begins with a mandate that a three member county road commission be elected by the people in any county 'where the county road system is adopted.' It then explicitly provides for the implementation of the plan by which the offices of county road commission shall be filled 'in the first instance' by expressly stating that 'the commissioners shall be appointed by the county board of commissioners or elected at a general or special election called for that purpose, as shall be ordered by the county board of commissioners.'

Use of the phrase 'in the first instance' has been construed by the Supreme Court, in Matthews, 275 Mich at 144, as conclusive that the Legislature was specifying a definite situation--'the institution of a county road system in a county.' The significance of such a phrase becomes apparent when juxtaposed to the language of MCL 224.7; MSA 9.107, which provides alternate methods for filling these road commission offices with successors in that 'thereafter 1 commissioner shall be elected or appointed biennially for the full term of 6 years.' MCL 224.7; MSA 9.107.

The language of these statutes does not require that all the offices of road commissioner in a county be filled by election after the institution of the county road system in the county. On the contrary, by specifying staggered road commissioner terms of 2, 4, and 6 years, followed by the election or appointment of one commissioner biennially for the full term of 6 years 'thereafter,' the Legislature has manifested a clear intent to provide for continuity in the system through a method of commissioner succession built upon adherence to the specific requirements applicable to filling positions 'in the first instance,' and then 'thereafter.'

Therefore, to be consistent with the overall scheme set up by the Legislature under these statutes, the power of the county board of commissioners to change the method of selection from time to time as recognized in Matthews, 275 Mich at 145, must logically pertain only to filling a road commissioner position which has become vacant either by the expiration of a term, or for any of the reasons expressly contained in MCL 168.267; MSA 6.1267, which provides:

'The office of county road commissioner in any county in this state shall become vacant upon the happening of any of the following events: Death of the incumbent; his resignation; his removal from office for cause; his ceasing to be a resident of the county where his office is located; his conviction of an infamous crime, or an offense involving the violation of his oath of office; the decision of a competent tribunal declaring his election or appointment void; his refusal or neglect to take and subscribe to the constitutional oath of office and deposit the same in the manner and within the time prescribed by law; or his refusal or neglect to give bond in the amount and manner and within the time prescribed by law.'

See also, MCL 201.3; MSA 6.693.

The provisions declaring the office of county road commissioners to be vacant are explicit. The controlling statutory scheme contains no provision for the vacation of the offices of county road commissioner upon the action of a county board of commissioners to change the method of selection of county road commissioners. Further, in MCL 224.8; MSA 9.108, the Legislature has included express language that:

'In any case a vacancy shall occur in the office of county road commission, the board of supervisors shall appoint a commissioner to full such vacancy, who shall hold office for the unexpired portion of the term in which the vacancy occurs. Each commissioner shall hold his office until his successor is elected or appointed and qualified. . . .'

These provisions were interpreted in Attorney General, ex rel Lumley v Schulz, 262 Mich 271; 247 NW 178 (1933), where an elected road commissioner died one month before the commencement of his second 6-year elective term. His successor was appointed on December 28, 1928 to fill the vacancy for the term expiring December 31, 1934. On May 19, 1932, the county board of supervisors acted to change the method of selection from elected to appointed, and on October 10, 1932 the board acted to appoint another person to the office of county road commissioner for a term expiring December 31, 1934, despite the fact that the office was occupied. The court held that since the appointment of December 28, 1928 was for the balance of the unexpired term, the appointment of a new county road commissioner was unauthorized during the unexpired term and was, therefore, invalid.

I believe that the rationale adopted by the Supreme Court in Schulz applies equally when the mode of selection of county road commissioner is changed from appointed to elected. After the institution of the county road system in the county, an election for the office of county road commissioner shall be held only to fill a vacancy in the office arising from the expiration of the term. MCL 224.8; MSA 9.108; MCL 168.264; MSA 6.1264.

It is my opinion, therefore, that action by the county board of commissioners to change the method of selecting county road commissioners from appointment to election does not operate to create vacancies in such offices requiring that all county road commissioner offices be filled at the next election. It is my further opinion that each county road commissioner in a county where the mode of selection for that office is changed from appointment to election may serve the balance of their unexpired term.

Frank J. Kelley

Attorney General

[ Previous Page]  [ Home Page ]