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. 5415

December 8, 1978

CONSTITUTION OF MICHIGAN:

Article 5, Section 28 (State Transportation Commission)

CONSTITUTION OF MICHIGAN:

Article 12, Section 2 (effective date of amendments)

HIGHWAYS AND ROADS:

State Transportation Commission

STATE TRANSPORTATION COMMISSION:

Term of office

OFFICERS AND EMPLOYEES:

Abolition of office

As a result of the adoption of Proposal M by the people, the State Highway Commission ceases to exist and the office of Highway Commissioner held by its members is abrogated. The Transportation Commission must be constituted by the Governor in accordance with the Constitution which states that they shall be appointed as provided by law.

Mr. John P. Woodford

Director

Department of State Highways and Transportation

Lansing, Michigan

You have requested my opinion on the following questions:

1. When does the amendment of Const 1963, art 5, Sec. 28, referred to herein as Proposal 'M' approved by the electorate November 7, 1978, become effective?

2. Do the present members of the State Highway Commission continue to serve out the remainder of their terms of that office as members of the Transportation Commission on the effective date of Proposal 'M'?

Const 1963, art 5, Sec. 28, prior to amendment by voter approval of Proposal 'M' provided as follows:

'There is hereby established a state highway commission, which shall administer the state highway department and have jurisdiction and control over all state trunkline highways and appurtenant facilities, and such other public works of the state, as provided by law.

'The state highway commission shall consist of four members, not more than two of whom shall be members of the same political party. They shall be appointed by the governor by and with the advice and consent of the senate for four-year terms, no two of which shall expire in the same year, as provided by law.

'The state highway commission shall appoint and may remove a state highway director, who shall be a competent highway engineer and administrator. He shall be the principal executive officer of the state highway department and shall be responsible for executing the policy of the state highway commission.'

Approval of Proposal 'M' has changed Const 1963, art 5, Sec. 28, to provide as follows:

'There is hereby established a state transportation commission, which shall establish policy for the state transportation department transportation programs and facilities, and such other public works of the state, as provided by law.

'The state transportation commission shall consist of six members, not more than three of whom shall be members of the same political party. They shall be appointed by the governor by and with the advice and consent of the senate for three-year terms, no three of which shall expire in the same year, as provided by law.

'The director of the state transportation department shall be appointed as provided by law and shall be the principal executive officer of the state transportation department and shall be responsible for executing the policy of the state transportation commission.'

Const 1963, art 12, Sec. 2, states that the effective date of any amendment to the Michigan Constitution shall be as follows:

'If the proposed amendment is approved by a majority of the electors voting on the question, it shall become part of the constitution, and shall abrogate or amend existing provisions of the constitution at the end of 45 days after the date of the election at which it was approved. If two or more amendments approved by the electors at the same election conflict, that amendment receiving the highest affirmative vote shall prevail.'

Accordingly, Const 1963, art 5, Sec. 28, as amended by Proposal 'M' will be effective December 23, 1978.

To answer your second question, it will be necessary to determine whether the language of Proposal 'M' permits the continuation of the current state highway commissioners on the effective date of Proposal 'M'. It is clear that the language of Proposal 'M' in establishing a transportation commission has established a new entity and thereby abolished the office of member of the state highway commission. The state highway commission under Const 1963, art 5, Sec. 28, as originally adopted consisted of four members, mandated to administer the highway department and to exercise jurisdiction and control over state trunkline highways. The state highway commission was specifically authorized to appoint a state highway director. Additionally, members of the state highway commission had terms of four years. Proposal 'M' provides that the state transportation commission shall set the policy for the state transportation department and its membership will number six with terms of no more than three years, no three of which is to expire in the same year.

It is therefore clear that the State Highway Commission ceases to exist and the office of highway commissioner held by its members is abrogated. The Transportation Commission must be constituted by the Governor in accordance with the constitution which states that they shall be appointed as provided by law.

Frank J. Kelley

Attorney General