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. 5257

January 24, 1978

TOWNSHIPS:

Vacancies in office of township treasurer

PUBLIC OFFICERS AND EMPLOYEES:

Vacancy in office of township treasurer

TOWNSHIP TREASURER:

Vacancy in office

A township board may not appoint a treasurer to fill a vacancy which is to occur in the future.

The Honorable Roy Smith

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion concerning the legality of the procedure followed by a township board in an attempt to appoint a township treasurer before the resignation of the incumbent treasurer became effective. According to information provided in your correspondence, the incumbent treasurer submitted his resignation which was to become effective on August 20, 1977. A special meeting of the township board was held on August 9, 1977, and the board, including the incumbent treasurer, voted on the appointment of a successor. You now ask whether or not the board proceeded properly to make a legally effective appointment.

The general rule with regard to the exercise of the power of appointment to fill a vacancy has been stated in 63 Am Jur 2d, Public Officers and Employees, Sec. 127, p 707, 708.

'It is a condition precedent to the exercise of the power to fill a vacancy in office that such vacancy in fact exist, or that it will surely occur within the time during which the appointing officer or body as then constituted will have authority to fill it. . . .'

The Michigan Court of Appeals in Lord v Genessee Circuit Judge, 51 Mich App 10; 214 NW2d 321 (1973) was called upon to determine the effective date of the resignation of a circuit judge. The judge submitted her resignation on May 4, 1972 to become effective on July 1, 1972. The Court concluded:

'. . .. For varying reasons it is entirely conceivable that the vacancy may never have materialized due to a change in circumstances before the effective date set forth as a condition of the resignation submitted by Judge Elza H. Papp. Therefore no vacancy existed until the effective date of the resignation. . . .'

Thus, when the board met on August 9, 1977 no vacancy in the office of township treasurer existed. Furthermore, the vacancy could not occur within the time during which the board as then constituted would have the authority to fill it since the creation of the vacancy would simultaneously alter the composition of the board.

The statutes which confer the power upon the township board to appoint a successor to fill a vacancy in the office of township treasurer evidence the legislative assumption that a vacancy exist before the power of appointment is exercised. For example, Sec. 59 of 1846 R.S., Ch 16; MCLA 41.59; MSA 5.43, provides in part as follows: 'In case the treasurer of any township shall . . . vacate his office . . . the township board shall forthwith appoint a treasurer for the remainder of the term, . . .'. And again in Sec. 370 of the Michigan Election Law, 1954 PA 116, as amended; MCLA 168.370; MSA 6.1370, the following provision is made as to all township offices: 'Whenever a vacancy shall occur in any elective or appointive township office . . . it shall be filled by appointment by the township board of the township . . .'.

The language of each of these statutes clearly indicates that a vacancy shall have occurred, that the treasurer shall have resigned, or that he have vacated his office before the township board is empowered to appoint a successor. Implicit in the phraseology of each of these statutes is the legislative intent that a vacancy exist before the appointment is made, and that the township board have no power to make appointments to fill possible future vacancies.

It has long been recognized that a valid appointment to an office cannot be made at a time when the office is rightfully held by an incumbent whose term has not yet expired, and such an appointment being invalid at its inception, the subsequent surrender of the office by the then incumbent will not make it valid. State ex rel Worrell v Peelle, 124 Ind 515; 24 NE 440 (1890).

Therefore, it is my opinion that the attempt of the township board at the August 9, 1977 meeting to appoint a treasurer to fill a vacancy which was to occur in the future was legally ineffective since the board did not have the power to make the appointment at that time. In addition, if 45 days have elapsed since the vacancy was created, it will be necessary to hold an election to fill the vacancy pursuant to MCLA 168.370; MSA 6.1370.

The policy of the law is that only persons authorized to fill a vacancy after the vacancy has actually been created should participate in selecting the person to fill the vacancy. Thus, in the case at hand, this would prevent the treasurer planning to resign from participating in the selection of his successor.

Frank J. Kelley

Attorney General