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. 5392

November 20, 1978

HIGHWAYS & ROADS:

Establishment of maximum speed limits

COUNTY ROAD COMMISSION:

Establishment of maximum speed limits on county roads

TOWNSHIPS:

Establishment of maximum speed limits on county roads

A county road commission in conjunction with the Director of the Department of State Police and, under certain circumstances, a school superintendent, have the authority to establish maximum speed limits on its county roads within a township.

Mr. Peter A. Cohl

Ingham County Corporation Counsel

Suite 400

303 West Kalamazoo Street

Lansing, Michigan 48933

You have requested my opinion on the following question:

Does a county road commission or the townships within the county have jurisdiction over those county roads within the townships for the purpose of establishing maximum speed limits?

1951 PA 51, Sec. 19; MCLA 247.669; MSA 9.1097(19) states:

'The board of county road commissioners in each of the several counties shall, within 1 year from the effective date of this act, complete the taking over as county roads of all roads, streets and alleys heretofore required to be taken over as county roads by the provisions of Act No. 130 of the Public Acts of 1931, as amended, being sections 247.1 to 247.13, inclusive, of the Compiled Laws of 1948. Said board of county road commissioners in each of the several counties shall take over as county roads all streets and alleys lying outside the limits of incorporated cities and villages and dedicated to the public in recorded plats approved by said board of county road commissioners, within 30 days after the recording of the plat or the effective date of this act, whichever may be the later. Such dedicated streets and alleys, when taken over by the county road commission, shall be county roads in all respects and for all purposes and shall be classified as county primary roads or county local roads pursuant to the provisions of this act.' (Emphasis supplied)

Thus, the Board of County Road Commissioners in each of the counties obtained control of all township roads, streets, and alleys under 1931 PA 130; MCLA 247.1, et seq, repealed.

Const 1963, art 7, Sec. 29, states:

'No person, partnership, association or corporation, public or private, operating a public utility shall have the right to the use of the highways, streets, alleys or other public places of any county, township, city or village for wires, poles, pipes, tracks, conduits or other utility facilities, without the consent of the duly constituted authority of the county, township, city or village; or to transact local business therein without first obtaining a franchise from the township, city or village. Except as otherwise provided in this constitution the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.'

In Union Township v Mt. Pleasant, 381 Mich 82, 86-89; 158 NW2d 905, 907 (1968) referring to Const 1963, art 7, Sec. 29, the Court stated:

'. . . The township reads article 7, Sec. 29 as a reservation of such regulatory power to the townships in all such matters except as otherwise provided by the Constitution itself. Thus, the township argues that while its roads may now be county roads for some purposes, they still are township roads for other purposes including that of article 7, Sec. 29's requirement of the township's consent, as well as the county's when any public utility seeks to use such roads for its facilities.

'It is our judgment that the township's interpretation of the Constitution is correct and that the legislature had so provided by sections 13 and 14 of PA 1925, No 368, even before adoption of our current Constitution. . . .'

1925 PA 368, Secs. 13 and 14; MCLA 247.183 and 247.184; MSA 9.263 and 9.264, provide that public utilities may not place facilities within any public right of way without first obtaining the consent of the state, county, city, village or township as the case may be. The City of Mt. Pleasant proposed to place a water pipeline within the right of way of a county road under the jurisdiction of the Isabella County Road Commission and with its permission. The consent of Union Township, however, was not first obtained. Injunctive relief was sought and granted. The Court construed the statute in light of Const 1963, art 7, Sec. 29, by stating 381 Mich at 89:

'. . . We construe this [the statutes] to mean any public road, including a county road and a State highway, thus manifesting the legislature's intent that townships, for example, retain their right of reasonable control over utility use of public roads passing through their territory, considering the inconvenience to township residents and businesses that generally results from construction within the right-of-way of public roads.' (Emphasis supplied)

Thus, Union Township, supra, decided only the question of public utilities occupying the right of way of a county road.

It should be noted that Const 1963, art 7, Sec. 29, specifically addresses the use of highways, streets and other public places by public utilities. The second and final sentence thereof provides for the general 'right of all counties, townships, cities and villages to the reasonable control of their highways . . .' except as otherwise provided in the Constitution.

Const 1963, art 7, Sec. 16, states:

'The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges, culverts and airports by the state and by the counties and townships thereof; and may authorize counties to take charge and control of any highway within their limits for such purposes. The legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports; may provide for county road commissioners to be appointed or elected, with powers and duties provided by law. . . .' (Emphasis supplied)

Accordingly, the legislature's grant of authority and power to counties with respect to highways and bridges may be read as an exception to the reasonable control provisions of Const 1963, art 7, Sec. 29. This exception, however, does not encompass the provisions of Const 1963, art 7, Sec. 29, in respect of public utilities use of roads, streets and other public places; those requirements being specifically mandated without qualification.

The question of local control over highways and streets way also dealt with in Jones v City of Ypsilanti, 26 Mich App 574, at 580; 182 NW2d 795 (1970). In that case the Court held as follows:

". . . the municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws." (Emphasis supplied)

In OAG, 1977-1978, No 5307, p ___ (May 18, 1978), it was concluded that local units of government have a right of reasonable control over highways and streets, including state trunkline highways, within their municipal limits, but such control with respect to state trunkline highways may not contravene any state law and must defer to the state's right of paramount jurisdiction over its state trunkline highways reserved by Const 1963, art 5, Sec. 28.

Consistent with Const 1963, art 7, Sec. 16, the legislature enacted 1949 PA 300, Sec. 628(a); MCLA 257.628(a); MSA 9.2328(a), authorizing a county road commission to establish maximum speed limits on county roads as follows:

'When the state highway commission or county road commission, with respect to highways under its jurisdiction, and the director of the department of state police shall jointly determine upon the basis of an engineering and traffic investigation that the speed of vehicular traffic on a state trunk line or county highway is greater or less than is reasonable or safe under the conditions found to exist at any intersection or other place or upon any part of the highway, the officials acting jointly may determine and declare a reasonable and safe maximum or minimum speed limit thereat which shall be effective at the times as may be determined when appropriate signs giving notice thereof are erected at the intersection or other place or part of the highway. If a superintendent of a school district determines that the speed of vehicular traffic on a state trunk line or county highway, which is within 1,000 feet of a school in the school district of which he is the superintendent, is greater or less than is reasonable or safe, the officials shall include the superintendent of the school district affected in acting jointly in determining and declaring a reasonable and safe maximum or minimum speed limit thereat. . . .'

The determination of the maximum speed established pursuant to this provision has the force and effect of law.

It is therefore my opinion that a county road commission in conjunction with the director of the department of state police and, under certain circumstances, a school superintendent have the authority to establish maximum speed limits on its county roads within a township.

Frank J. Kelley

Attorney General