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Opinion No. 5135

October 11, 1977


Appointment to fill vacancy


Compel appointment to fill vacancy

Appointment to fill a vacancy in the office of sheriff should be made promptly. Mandamus will lie to compel appointment to fill a vacancy in the office of sheriff not made within a reasonable time.

Mr. J. B. Jenkins

Prosecuting Attorney of Ontonagon County

306 Houghton Street

Ontonagon, Michigan 49953

You have requested my opinion concerning the time within which a vacancy in the office of sheriff must be filled. Your question may be restated as follows:

When a vacancy occurs in the office of county sheriff, must that vacancy be filled within any specific time limitation?

Appointment to fill a vacancy in the office of sheriff is governed by the Election Law, 1954 PA 116, Sec. 209, as amended; MCLA 168.209; MSA 6.1209 and by Sec. 5 of 1923 PA 199, MCLA 201.35; MSA 6.714. Under both of the statutes, the judge of probate, the county clerk, and the prosecuting attorney must select a person to fill the vacancy. In case of a conflict over the length of the period the successor should serve, the provisions of MCLA 168.209; MSA 6.1209, the latter statute, controls. 1973-1974 OAG No. 4809, p 124 (February 11, 1974).

Neither of these statutes establishes a specific time limitation with regard to filling the vacancy. However, the importance of the office is such that a vacancy cannot be permitted to exist indefinitely. In Attorney General, ex rel Baird v Johnson, 294 Mich 250, 253; 293 NW 545 (1940), the Supreme Court recognized the need for immediate attention to a vacancy in the office of sheriff and discussed the statutory procedure designed for 'the purpose of not leaving a public office vacant.' The appointment should be made promptly.

Failure to fill a vacancy in a county office within a reasonable length of time may result in the timely institution of an action for mandamus to compel the appointment. See Attorney General, ex rel Barr v Kent County Clerk, 45 Mich App 406; 206 NW2d 475 (1973).

Frank J. Kelley

Attorney General