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Opinion No. 5180

April 29, 1977


Article 8, section 9


Use of penal fines to pay for library services


Public libraries


Public libraries

A county library board may contract with the library system of another county to provide library services to a township within the county and may use the per capita share of several funds of the township to pay for these services. The fund transfer may only be made, however, where any one of the following conditions is present: (1) The county has no public library, (2) The township does not have a public library or (3) The township has not established a library service.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

'May county penal funds earmarked for in-county support of library systems be transferred across county lines as payment for library services for certain county residents?'

The use of penal funds to support public libraries in Michigan is an honored tradition which began with Const 1835, art 10, Sec. 4. Currently, the use of penal funds for the support of public libraries is mandated by Const 1963, art 8, Sec. 9 which states in pertinent part:

'. . . All fines assessed and collected in the several counties, townships and cities for any breach of the penal laws shall be exclusively applied to the support of . . . public libraries, and county law libraries as provided by law.' (1)

1964 PA 59; MCLA 397.31 et seq; MSA 15.1793(1) et seq, controls the disbursement of penal fines for the support of public libraries. Section 3, which deals directly with your question, states:

'In any county where there is no public library, or in any county within the boundaries of which there are municipalities which have not established public library service or which do not maintain public libraries, the county board of supervisors (2) shall appoint a county library board to receive the per capita portion of penal fine moneys to be allocated for such areas. The county library board shall consist of 5 members appointed by the county board of supervisors for terms of 5 years each, except that the first members shall be appointed for 1, 2, 3, 4 and 5 years respectively. The board may contract with a qualified public library, within or without the county, to provide public library service for all residents of the county without legal access to a public library.' [Emphasis added.]

Under this section it is within the discretion of the county library board to distribute the per capita share of penal funds designated for library service for a township without such a service. This discretion of the county board to contract with libraries whether within or without the county indicates that it is legal to transfer penal funds from one county to another in order to provide library services for the citizens of the first county.

The fund transfer, however, may be made only if any one of the three following conditions is present: (1) the county has no public library, (2) a municipality within the county does not have a public library, or (3) a municipality within the county has not established a library service. In the instant case, your letter indicates that St. Clair County has a library system, but that Columbus Township does not have a library and has not provided a township library service.

Under 1964 PA 59, Sec. 3, supra, it is therefore within the power of the St. Clair Library Board to provide Columbus Township with library services from either of two sources. The board may elect to provide library services for Columbus Township from the St. Clair County Library system or, alternatively, supply library service to Columbus by contracting with an established library system (such as the Macomb County library system) paying for the services with Columbus Township's per capita share of penal fine funds and other funds dedicated to the provision of library services for county residents.

Columbus Township may elect to provide itself with library services. State law authorizes the establishment of free public libraries by townships. 1877 PA 164; MCLA 397.201 et seq; MSA 15.1661 et seq is an act that authorizes certain municipal units, including townships, to establish and maintain free public libraries and reading rooms. Section 10 of this act authorizes establishment upon appropriate petition of voters and a vote by the electorate of the township. MCLA 397.201; MSA 15.1670.

1967 Ex Sess PA 7; MCLA 124.501 et seq; MSA 5.4088(1) et seq authorizes interlocal public agency agreements and provides standards for such agreements, their filing and status. Included within the meaning of public agency are townships and charter townships as well as public authorities. 1967 Ex Sess PA 7, supra, Sec. 4 provides, in part:

'A public agency of this state may exercise jointly with any other public agency of the state . . . any power, privilege or authority which such agencies share in common and which each might exercise separately.'

See also 1951 PA 35; MCLA 124.1 et seq; MSA 5.4081 et seq which authorizes municipal units, including townships and charter townships, to enter into interlocal agreements.

A township or charter township is empowered to contract with any other governing body for any service for which it could by law provide for its residents. Because a township may provide a library for its residents in the manner authorized by law, it may therefore, when authorized, provide for library services by contracting with any governing body to provide those services under the provisions of 1967 Ex Sess PA 7, supra.

The contracting township must pay for the library services its residents receive pursuant to 1964 PA 59, supra, Sec. 5, which provides:

'(1) If any municipality within a county has not established a public library but is contracting for public library service with the governing body of a legally established public library, it is entitled to receive its per capita share of the penal fine moneys the same as if it had a legally established public library. The moneys shall be used for the provision of public library service for all residents of the municipality.

'(2) If any municipality within a county is supporting more than 1 public library, the penal fines shall be allocated to each public library in ratio to the tax support provided by the municipality to the respective public libraries.'

Thus, a township may disburse its per capita share of the penal funds as consideration for the library services rendered its residents. Further, a township may contract with both its own county library system and with that of an adjoining county if in its judgment this is necessary to provide adequate library services to its residents.

Therefore, it is my opinion that the St. Clair County Library Board or Columbus Township may contract with the Macomb County Library system to provide services for Columbus Township residents and use the per capita share of St. Clair County penal funds earmarked for Columbus Township to pay for these services.

Frank J. Kelley

Attorney General

(1) This section of the constitution also directs that the state legislature construct the framework under which public libraries are governed. The acts of the legislature which provide this framework are 1937 PA 106; MCLA 397.1-397.8; MSA 15.1565(1)-(8), 1964 PA 59; MCLA 397.31-397.40; MSA 15.1793(1)-(10), 1895 PA 28; MCLA 397.51-397.59; MSA 15.1541-15.1549, 1964 PA 236; MCLA 397.126, 1931 PA 250; MCLA 397.151-397.159; MSA 15.1781-15.1789, 1877 PA 164; MCLA 397.201-397.217; MSA 15.1661-15.1677, 1919 PA 305; MCLA 397.241-397.246; MSA 15.1681-15.1686, 1913 PA 261; MCLA 397.261-397.275; MSA 15.1691-15.1692, 1917 PA 138; MCLA 397.301-397.305; MSA 15.1701-15.1705, 1917 PA 5; MCLA 397.321-397.326; MSA 15.1711-15.1716, 1927 PA 165; MCLA 397.351-397.358; MSA 15.1721-15.1728, 1925 PA 213; MCLA 397.371; MSA 15.1741, 1921 PA 136; MCLA 397.381-397.382; MSA 15.1751-15.1752, 1921 PA 26, 1st Extra Session; MCLA 397.401-397.405; MSA 15.1761-15.1765, 1899 PA 115; MCLA 397.453; MSA 15.1632, 1952 PA 92; MCLA 397.471-397.472; MSA 15.1792(1)-(2), 1959 PA 127; MCLA 397.491-397.495; MSA 15.1566(1)-(5), 1965 PA 286; MCLA 397.501-397.527; MSA 15.1791(101)-(127), 1973 PA 181; MCLA 397.231-397.233; MSA 15.1698(1)(3).

(2) Now referred to as the county board of commissioners, 1966 PA 261, Sec. 16, added by 1969 PA 137; MCLA 46.416; MSA 5.359(16).