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. 5525

July 13, 1979

FOURTH CLASS CITIES:

Conversion to

HOME RULE CITIES ACT:

Adoption of home rule charter

HOME RULE CITIES:

Conversion of fourth class cities into

A fourth class city becomes a home rule city on January 1, 1980 by operation of law. If a fourth class city does not approve its home rule charter by January 1, 1980, the provisions of the fourth class cities act, 1895 PA 215, shall constitute its home rule charter.

Honorable Ladd S. Stacey

State Representative

The Capitol

Lansing, Michigan 48909

Referring to the enactment of 1976 PA 334 amending 1895 PA 215, MCLA 81.1 et seq; MSA 5.1591(1) et seq, to add section 1c thereto, you request my opinion on the following question:

What is the effect of 1895 PA 215, Sec. 1c, supra, on a fourth class city on January 1, 1980?

1895 PA 215, supra, provides for the incorporation of fourth class cities. By means of 1976 PA 334, the Legislature amended 1895 PA 215, supra, to add a section 1c, to read as follows:

'Effective January 1, 1980, a city incorporated under this act shall be deemed a home rule city as provided by Act No. 279 of the Public Acts of 1909, as amended, being sections 117.1 to 117.38 of the Michigan Compiled Laws. Until a charter is adopted pursuant to Act No. 279 of the Public Acts of 1909, as amended, this act shall be deemed to be the charter of the city.'

The legislative history of the amendatory act, 1976 PA 334, is instructive. As originally introduced as 1975 House Bill No. 5496, the bill purported to repeal 1895 PA 215, supra, to be effective January 1, 1980. The House Committee on Towns and Counties recommended a substitute bill which was enacted by the Legislature without any changes. 1976 House Journal, No. 70, p 1712; 1976 Senate Journal, No. 108, p 2229.

Const 1963, art 7, Sec. 21, provides:

'The legislature shall provide by general laws for the incorporation of cities and villages. . . .'

The history of incorporation of fourth class cities is also instructive. When the fourth class cities act, 1895 PA 215, supra, was enacted in 1895, certain provisions, which are still applicable today, reflected the departure from prior incorporation. Cities previously incorporated under general or special law were reincorporated and made subject to the fourth class cities act, 1895 PA 215, supra, with opportunity for local option to remain incorporated under their special legislation. See 1895 PA 215, ch 1, Sec. 1, supra, which, in part provides:

'. . . all cities within the state of Michigan heretofore incorporated and made subject to the provisions of this act . . . shall be cities of the fourth [4th] class.'

It also provided in 1985 PA 215, supra, ch XXXIII, Sec. 1 as follows:

'All cities heretofore incorporated under any general or special law of this state . . . are hereby reincorporated under and made subject to the provisions of this act, as cities of the fourth [4th] class, such reincorporation to take effect on the first [1st] day of January . . . [1896], and all acts by virtue of which such cities have been incorporated are hereby repealed . . . except as hereinafter in this section provided: provided however, That whenever fifty [50] or more of the qualified voters of any city . . . incorporated under a special act of the legislature, shall file . . . a petition praying that an election . . . be called to determine . . . whether such city shall remain incorporated under the special act . . . it shall be the duty of such council to call a special election . . . If a majority of all the votes cast at such election are in favor of remaining incorporated under such special act . . . then such city shall not be incorporated under the provisions of this act, but shall remain incorporated under such special act, which shall remain in full force and effect as if this law had not been enacted. . . .'

Similarly, certain villages were authorized, but not required, to incorporate under the fourth class cities act, and when such incorporation was locally approved, were 'deemed in law to be . . . a city of the fourth [4th] class duly incorporated under and subject to the provisions of this act. . . .' 1895 PA 215, Sec. 8, supra. Although this legislation provided for incorporation under the fourth class cities act in apparent mandatory terms, it was permissive to the extent that an option was afforded for continuation under prior special legislation.

1909 PA 279, Sec. 2, MCLA 117.2; MSA 5.2072, the home rule cities act, contains the following saving clause:

'Each city now existing shall continue with all its present rights and powers until otherwise provided by law.'

This provision was interpreted in Common Council of the City of Niles v DeLand, 219 Mich 609, 610, 611; 189 NW 35 (1922), where the Supreme Court held that the home rule cities act was not intended to repeal any special or statutory act under which cities might be operating, and that it was optional with cities to remain as they were or to come under this act:

'The city of Niles is a city of the fourth class, by virtue of Act No. 215 of the Public Acts of 1895 . . . It did not take advantage of the option extended to it of coming under the home rule act (Act 279 of the Public Acts of 1909) . . . but is still operating under Act No. 215. . . .'

After quoting the above saving clause, the Court stated:

'Had this provision been omitted it might be plausibly argued that Act No. 279 superseded Act No. 215 by implication, but in the face of this positive declaration we do not think it can be said that the provisions of Act No. 215 were so amended.

'If plaintiff has remained and operated under Act No. 215, which it seems to be conceded that it has since Act No. 279 was passed, it is now vested 'with all its present rights and powers' that it was then Act No. 279 took effect. If we say now that it has not the right to initiate the proceedings . . . we must say that Act No. 279 has deprived it of that right contrary to the provision just quoted [the saving clause]. We think the intent of the legislature is very clear that Act No. 279 was not intended to repeal any special or statutory acts under which cities might be operating except in those instances where it is expressly provided.'

The power of the Legislature to enact 1895 PA 215, Sec. 1c as added by 1976 PA 334, supra, is clear. The intent of the Legislature in such enactment is equally clear. On January 1, 1980 all fourth class cities shall become home rule cities. If such a city adopts its own home rule charter, the charter will be the home rule city's organic law. If a fourth class city does not adopt a home rule charter, on January 1, 1980, it will become a home rule city with the fourth class cities act, 1895 PA 215, supra, as its home rule charter.

Therefore, it is my opinion that a fourth class city which does not approve a home rule charter by January 1, 1980, becomes a home rule city by operation of law on that date and 1895 PA 215, supra, is its home rule charter.

Frank J. Kelley

Attorney General