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. 5304

April 27, 1978

SHERIFFS:

Establishment of a county police force by board of county commissioners

COUNTIES:

Establishment of a county police force by board of county commissioners

BOARDS & COMMISSIONERS:

Establishment of a county police force by board of county commissioners

The county board of commissioners is without authority to create a police department within the county which would perform functions that are the responsibility of the sheriff.

The Honorable Claude A. Trim

State Representative

Capitol Building

Lansing, Michigan 48901

You have requested my opinion as to whether a county board of commissioners may establish a county police or security force that is independent of the county sheriff; presumably members of such a police force are to exercise the powers of a peace officer.

The principal enumeration of the powers of a county board of commissioners is contained in 1851 PA 156, Sec. 11; MCLA 46.11; MSA 5.331. Subsection 13 of this section confers general legislative power upon the board, but it limits that power as follows:

'A county board of commissioners, at any meeting thereof lawfully held, may: . . .

'. . .

'Thirteenth, pass laws, regulations, and ordinances relating to purely county affairs as they may see fit, but which shall not contravene the general laws of this state . . . amend any local act of the legislature in force in their county and referring to matters within the jurisdiction of the county board of commissioners or touching the local powers and duties of county officers, but the county board of commissioners shall not increase or extend its own powers, duties, or jurisdiction and shall not have jurisdiction over the circuit court; . . .' (Emphasis supplied)

A county board of commissioners has only those powers which are prescribed by law, or which are incident and necessary to the performance of their express powers and duties. Washtenaw Abstract Co v Mayer, 347 Mich 228; 79 NW2d 480 (1957), Wright v Bartz, 339 Mich 55; 62 NW2d 458 (1954). Examination of the law prescribing the powers of the board of commissioners discloses no authorization for the creation of a police force which would perform functions already within the authority of the county sheriff. On the contrary, the emphasized language in 1851 PA 156, Sec. 11, subsection 13, supra, indicates that the board is expressly prohibited from contravening state law and from expanding its own powers.

The county sheriff is charged by state law with the responsibilities which the 'county police force' would be expected to assume. The powers of the sheriff are detailed in chapter 14, RS 1846; MCLA 51.68 et seq; MSA 5.861 et seq, and more specifically, MCLA 51.221; MSA 5.881 which provides that the sheriff should exercise all the powers and duties of a constable. The sheriff is also invested with duties under common law so that, 'It is the duty of the sheriff and police officers generally to enforce those laws which the people have enacted for the protection of their lives, persons, property, health, and morals. . . .' Scougale v Sweet, 124 Mich 311, 323; 82 NW 1061 (1900). It has been recognized that a county board of commissioners may not directly interfere with the exercise of the authority conferred upon the sheriff. OAG 1947-48 No 755, p 665 (June 2, 1948).

In Brown v Hill, 216 Mich 520; 185 NW 751 (1921) the Court considered the attempt of a county board to adopt an ordinance transferring the responsibilities of the county board of auditors to the board of supervisors. The Court discussed the provision of 1851 PA 156, Sec. 11, subsection 13, supra, and concluded that:

'. . . The action of the board of supervisors in adopting said ordinance was repugnant to, and violated and infringed the plain terms of the statute, which provides, in clear language, that the board of supervisors shall not have power to increase or extend its own powers, duties or jurisdiction. . . . Whatever other power the board of supervisors possessed, there certainly has not been conferred upon that body the power to increase or extend its own powers, duties or jurisdiction, and that was sought to be done here.' 216 Mich at 526, 527

The creation of a county fire department was the subject of two prior formal opinions of the Attorney General. In OAG 1941-42 No 24062, p 629 (June 24, 1942) it was determined that a county which did not meet the population requirements of 1942 PA 15; MCLA 46.301 et seq; MSA 5.2586(1) et seq, had no authority to provide fire protection. Similarly, in OAG 1957-58, Vol II, No 3110, p 125 (May 14, 1958) it was determined that a county could not purchase fire fighting equipment.

Thus, it is clear that the delegation of law enforcement responsibilities to any entity other than the sheriff would contravene general state laws. In addition, such a delegation would tend to increase the powers, duties and jurisdiction of the county board of commissioners by transferring a measure of the sheriff's authority to an organization responsibile to the board and not to the sheriff. Therefore, a county board of commissioners is prohibited from creating such a police force.

The foregoing reasoning and conclusions are equally applicable to a county organized under the unified form of county government pursuant to 1973 PA 139; MCLA 45.551 et seq; MSA 5.302(51) et seq. Section 4 of the act, MCLA 45.554; MSA 5.302(54) provides in part:

'(4) The power vested in the office of county prosecuting attorney, county sheriff, county register of deeds, county clerk, county treasurer, county drain commissioner, or the board of county road commissioners and elected county auditor shall not be minimized or divested by any provision of this act.' (Emphasis supplied)

In summary, it is my opinion that a county board of commissioners is without authority to create a police department within the county which would perform functions that are the responsibility of the sheriff.

Frank J. Kelley

Attorney General