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. 5566 September 24, 1979 MUNICIPALITIES: Adoption of animal control ordinance COUNTIES: Adoption of animal control ordinance by municipalities within county ANIMALS: Adoption of animal control ordinance by municipalities A city, village or township that enacts its own animal control ordinance is responsible for its own enforcement expenses and may not charge the county for such expenses. Joseph T. Barberi, Esq. Isabella County Prosecuting Attorney 200 North Main Street Mt. Pleasant, Michigan 48858 County Building Marquette, Michigan 49855 You have asked whether a city may establish an animal control program without adopting an ordinance, and then charge the county the reasonable expense of maintaining it. 1919 PA 339, Sec. 25, MCLA 287.285; MSA 12.535, provides: 'Any valid claims for loss or damage to live stock which have accrued under any general or local laws, prior to the taking effect of this act, shall not abate by reason of the repeal of such laws by the operation of this act, but all such claims, and all claims arising under this act and all expense incurred in any county in enforcing the provisions of this act shall be paid out of the general fund of the county. At the time this act takes effect, all moneys then in the 'dog fund' in the hands of township or city treasurers, derived from the taxation of dogs under existing laws, shall be turned into the county general fund: Provided, In all cities having a well regulated dog department, the reasonable expense of maintaining the same, shall be borne by said county, duly audited by the board of supervisors, (1) and in any county having a board of county auditors, said board of county auditors shall audit said reasonable bills, to be paid out of the general fund of the county.' This section indicated that 1919 PA 339 operated to repeal prior general and local laws, with the proviso that '[i]n all cities having a well regulated dog department, the reasonable expense of maintaining the same, shall be borne by the said county.' At the time that section 25 was first enacted, the only exception from the provisions of said act were cities having a population of 250,000 or more. See 1919 PA 339, Sec. 30 as originally enacted; MCLA 287.290; MSA 12.541. (2) The legislative history of this section, discussed in OAG, 1963-1964, No 4353, pp 513, 517 (December 1, 1964), reflects the legislative intention to increasingly broaden the exceptions from the application of said act. That opinion states: 'The foregoing recitals demonstrate that Section 30 has always been treated by the legislature as a medium for delineating exclusionary exceptions to state enforcement where local enforcement machinery exists and is satisfactory to the legislature. . . .' The exceptions were further broadened by 1972 PA 349, which amended section 30 to authorize all cities, villages and townships to adopt their own animal control ordinances, without regard to their population. Section 30 now provides: 'A city, village or township by action of its governing body may adopt an animal control ordinance to regulate the licensing, payment of claims and providing for the enforcement thereof. . . .' 1972 PA 349 also added section 29a, MCLA 287.289a; MSA 12.540(1), limiting a county's jurisdiction for enforcement, expense, etc., to animal control programs in cities, villages and townships which do not have their own animal control ordinances: '. . . The [county] animal control agency shall have jurisdiction to enforce this act in any city, village or township which does not have an animal control ordinance. The county's animal control ordinance shall provide for animal control programs, facilities, personnel and necessary expenses incurred in animal control. The ordinance is subject to sections 6 and 30.' [Emphasis added] In letter opinions to Senator John Toepp, dated March 7, 1978, and Mr. Gary L. Walker, Marquette County Prosecuting Attorney, dated January 3, 1979, (see appendices A and B) I concluded that a home rule city that enacted its own animal control ordinance is responsible for its own enforcement expenses, and may not charge the county for such expenses. The Toepp opinion quoted at length from OAG, 1963-1964, No 4353, and explained how the growth of the exceptions to section 30 has eroded the application of section 25. While OAG, 1949-1950, No 968, p 255 (June 30, 1949) held that a city with a population under 5,000 may be charter provision or ordinance, establish a well regulated dog department and charge the county the reasonable expense of maintaining the same, that opinion was issued before section 29a was added to 1919 PA 339 to except cities, villages and townships from county control and reimbursement with their own ordinances. In light of changes made from time to time to section 30, and the addition of section 29a, the responsibility for the expense of such city programs has been changed by the legislature. The recent opinions reflect the changes in the scope of local enforcement and the more limited jurisdiction and responsibility of counties for enforcement and the expense of animal control programs subsequent to the issuance of OAG, 1949-1950, No 968, supra, and should therefore be deemed controlling. Cities, villages and townships are presently authorized to establish dog departments by adoption of animal control ordinances. When such ordinances are adopted, county enforcement is precluded by section 29a, supra. If a local ordinance is not adopted, the county animal control agency has jurisdiction for enforcement, personnel, expenses, etc., under the same provision. It is my opinion that a city, village or township may not establish its own animal control program unless a local ordinance is adopted by the city, village or township as provided for by section 30, supra, and that such municipalities may not charge counties for the expenses of animal control programs when they have adopted their own ordinances. Frank J. Kelley Attorney General March 7, 1978. Honorable John F. Toepp State Senator The Capitol Lansing, Michigan 48909 Dear Senator Toepp: You have requested my opinion on the following questions relating to the Dog Law of 1919, 1919 PA 339, as last amended by 1972 PA 349; MCLA 287.261 et seq; MSA 12.511 et seq: 1. May the City appoint its own dog warden and maintain its own dog control program if the county elects to appoint a dog warden for the city as provided in Sec. 16 of the dog law? 2. If the answer to No. 1 is yes, is the county still responsible for the salary of the city's dog warden and other expenses? In responding to your questions it is first necessary to review the history of this act for only a detailed review of its legislative history can explain why the growth of the exceptions contained in 1919 PA 339, supra, Sec. 30 has eroded the rule stated in section 25. As such a review was comprehensively set forth in OAG, 1963-1964, No 4353, p 513, 514-517 (December 1, 1964), I quote the following at length from that opinion: 'Act 339, P.A. 1919 is the present dog law. Reviewing only the amendments to Section 30 thereof, we find that in the original act, the section read as follows: "All cities in this State having a population of two hundred fifty thousand, according to the last federal census, or that shall hereafter attain such a population, are hereby excepted from all the provisions of this act.' 'The section was amended by Act 310, P.A. 1921, to insert and add, after the words 'such a population,' the words: "and all cities and villages located entirely within the limits of any such city of two hundred fifty thousand population' The words 'are hereby excepted from the provisions of this act' then followed the insertion. 'The section was amended by Act 239, P.A. 1929, by inserting after the words 'two hundred fifty thousand population' the words: "and all villages located within twenty miles of the corporate limits of such cities of two hundred fifty thousand population.' 'Act 189, P.A. 1933, expanded the language by adding the words 'or more' after the words 'two hundred fifty thousand population' in the three places where the words occur, and excepting cities within twenty miles. 'Act 288, P.A. 1941, amended Section 30 to read: "All cities in this state having a population of 250,000 or more, according to the last federal census, or that shall hereafter attain such a population, and all cities and villages entirely within the limits of such city of 250,000 population or more, or located within twenty miles of the corporate limits of such cities of 250,000 or more, [and all townships in the county lying within a radius of 20 miles or the corporate limits of such cities of 250,000 or more and having an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances], are hereby excepted from the provisions of this act. [Any such township shall be authorized by action of its township board to adopt an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances.]'t 209, P.A. 143, further expanded Section 30 by changing 'the county' and subsequent phrase in the seventh line of the section as quoted above to read: 'counties having a city of 250,000 population or more.' 'Act 22, P.A. 1949, amended the section by adding the words 'or townships contiguous to cities having a population of 250,000 or more' before the words 'and having an ordinance. . . .' 'Act 125, P.A. 1952, amended the section by adding after 'such ordinances' a proviso as follows:. "Provided, however, In counties which have or may hereafter by resolution of the board of supervisors adopted rabies vaccination requirements as set forth in Act No. 35 of the Public Acts of 1949, any city, village, or township adopting a dog licensing ordinance or ordinances shall also require that such application for a license shall be accompanied by proof of vaccination of the dog for rabies within the year preceding the date of the application.' 'Act 172, P.A. 1953, further amended Section 30 of the 1919 dog law so that it reads as follows: "All cities in this state having a population of 250,000 or more, according to the [latest or each succeeding federal decennial census,] or that shall hereafter attain such a population, and all cities and villages entirely within the limits of such city of 250,000 population or more, or located within 20 miles of the corporate limits of such cities of 250,000 or more, and all townships in counties having a city of 250,000 population [or more] or township contiguous to cities having a population of 250,000 or more and having an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances, [with the exception of the provisions in section 10, 10a and 11 of this act,] are hereby excepted from the other provisions of this act. Any such [city, village or] township shall be authorized by action of the [city, village or] township board to adopt an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances: Provided, however, In counties which have or may hereafter by resolution of the board of supervisors adopted rabies vaccination requirements as set forth in Act No. 35 of the Public Acts of 1949, any city, village or township adopting a dog licensing ordinance or ordinances shall also require that such application for a license, [except kennel licenses,] shall be accompaned by proof of vaccination of the dog for rabies within the year preceding the date of the application.'t 211, P.A. 1959, amended the section to read, and it currently reads, as follows: "All cities in this state having a population of 250,000 or more, according to the latest or each succeeding federal decennial census, and all cities and villages located within 20 miles of the corporate limits of such cities of 250,000 or more, and townships having an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances, with the exception of the provisions in sections 10, 10a and 11 of this act, are hereby excepted from the other provisions of this act. Any city, village, or township [in a county of 150,000 population or more according to the latest or each succeeding federal decennial census] shall be authorized by action of the city or township [governing body] to adopt an ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances. In counties which have or may hereafter by resolution of the board of supervisors adopted rabies vaccination requirements as set forth in Act No. 35 of the Public Acts of 1949, any city, village, or township adopting a dog licensing ordinance or ordinances shall also require that such application for a license, except kennel licenses, shall be accompanied by proof of vaccination of the dog for rabies within the year preceding the date of the application.' (C.L.S. 1961 Sec. 287.209; M.S.A. 1963 Cum. Supp, Sec. 12.541) (a1) 'The foregoing recitals demonstrate that Section 30 has always been treated by the lagislature as a medium for delineating exclusionary exceptions to state enforcement where local enforcement machinery exists and is satisfactory to the legislature. The dog law being a regulatory measure under the police power and not a tax or revenue measure, it seems appropriate to conclude that no duality of regulation was intended by the legislature and accordingly the 1959 amendment should be construed as excepting dog owners from the requirements of purchase of a county license if they reside in and own dogs in cities, villages or townships within counties of 150,000 population or more which have adopted ordinances regulating the licensing of dogs.' [Footnotes omitted] Responding now to you first question, a reading of the entire statute indicates that 1919 PA 339, supra, Sec. 16 authorizes a county to appoint an animal control officer to act within a city only where a city does not have its own effective ordinance regulating dogs. Accordingly, it is my opinion that, by virtue of its home rule powers and pursuant to 1919 PA 339, supra, Sec. 30 a city in a county with a population of 150,000 or more may adopt an animal control ordinance and may appoint its own dog warden or animal control officer; further, a county of a population of 150,000 persons or more may not enforce its dog ordinance within a city which has adopted its own ordinance pursuant to 1919 PA 339, Sec. 30, supra. As to your second question, it is my opinion that a city which adopts its own ordinance is responsible for the full cost of implementing that ordinance and that, conversely, the county has no financial responsibility for enforcement of the city's ordinance. I recognize that 1919 PA 339, supra, Sec. 25 contains a proviso which states: '. . . In all cities having a well regulated dog department, the reasonable expense of maintaining the same, shall be borne by said county, . . .' However, this proviso must be read in conjunction with 1919 PA 339, Sec. 30, supra, excepting certain cities from the act, the legislative history of which reveals that the section 25 proviso is only intended to apply to such cities, villages and townships not included within section 30. Thus, for the purposes of illustration, the proviso should be read as though the underlined portions were included: '. . . In all cities having a well regulated dog department, except those which have their own ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances, the reasonable expense of maintaining the same shall be borne by said county. . . .' It is therefore my opinion that a home rule city that enacts its own animal control ordinance pursuant to 1919 PA 339, Sec. 30, supra, is responsible for its own enforcement expenses payable from fees collected thereunder. Very truly yours, Frank J. Kelley Attorney General. January 3, 1979. Mr. Gary Walker Marquette County Prosecuting Attorney Dear Mr. Walker: Your correspondence indicates that the County of Marquette does not have an animal control ordinance or program and that the City of Marquette has submitted a bill to Marquette County for reimbursement of the city's expenses for its animal control program for the fiscal year beginning July 1, 1978. You request my opinion on the following question: Is a county required by 1919 PA 339 Sec. 25; MCLA 287.285; MSA 12.535, to reimburse a city in the county for the expenses of the city's administration of an animal control program under the city's ordinance? Your question has previously been answered in the negative in a letter opinion to Senator John F. Toepp dated March 7, 1978, which discussed section 30, supra, and the proviso of section 25, as follows: 'However, this proviso must be read in conjunction with 1919 PA 339, Sec. 30, supra, excepting certain cities from the act, the legislative history of which reveals that the section 25 proviso is only intended to apply to such cities, villages and townships not included within section 30. 'Thus, for the purposes of illusatration, the proviso should be read as though the underlined portions were included: '. . . In all cities having a well regulated dog department, except those which have their own ordinance or ordinances regulating the licensing of dogs, payment of claims and providing for the enforcement of such ordinances, the reasonable expense of maintaining the same shall be borne by said county. . . .' 'It is therefore my opinion that a home rule city that enacts its own animal control ordinance pursuant to 1919 PA 339, Sec. 30, supra, is responsible for its own enforcement expenses payable from fees collected thereunder.' Very truly yours, Frank J. Kekket Attorney General. (1)
(2)
Section 30 has since been amended by 1921 PA 310, 1929 PA 239, 1933 PA 189, 1941 PA 288, 1943 PA 209, 1949 PA 22, 1952 PA 125, 1953 PA 172, 1959 PA 211, 1969 PA 195, 1971 PA 229 and 1972 PA 349.(a1)
The added language is indicated by brackets'