STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5587

October 26, 1979

CONSTITUTION OF MICHIGAN:

Art 7, Secs. 2, 4, 5, 6 and 8 (county government)

COUNTIES:

County charter providing for abolishment of constitutionally elected county officers

In authorizing the framing and adoption of a county charter, the legislature may not provide for the abolishment of the elected county officers designated in Const 1963, art 7, Sec. 4.

Honorable Claude A. Trim

State Representative

House of Representatives

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

Const 1963, art 7, Sec. 4 provides:

In Const 1963, art 7, Sec. 5, the people have provided:

The people have also ratified Const 1963, art 7, Sec. 6, which provides:

In Const 1963, art 7, Sec. 8, the people have provided:

The law is well settled that the office of prosecuting attorney is a constitutional office. Schneider v Shepherd, 192 Mich 82; 158 NW 182 (1916), Lawrence Scudder & Co v County of Emmet, 288 Mich 181; 284 NW 691 (1939). It must follow that the county officers enumerated in Const 1963, art 7, Sec. 4, supra, are constitutional officers.

It should be noted that Const 1963, art 7, Sec. 4 empowers the board of supervisors ⁽¹⁾ in any county to combine the offices of county clerk and register of deeds into one office or separate the same at pleasure. The Michigan Supreme Court, construed comparable language found in Const 1908, art. 8 Sec. 3 to permit the then board of supervisors to unite the office of register of deeds with the office of county clerk, but because the office of register of deeds is a constitutional one, no power is conferred upon the board of supervisors to abolish it. MacDonald v DeWaele, 263 Mich 233; 248 NW 605 (1933).

Consideration must also be given to Const 1963, art 7, Sec. 2, which in pertinent part provides as follows:

The legislature, by the enactment of 1966 PA 293; MCLA 45.501 et seq; MSA 5.302(1) et seq, has implemented Const 1963, art 7, Sec. 2, supra. In 1966 PA 293, supra, Sec. 14, the legislature has commanded that a county charter adopted under the provisions of the act shall provide 'the partisan election of a sheriff, a prosecuting attorney, a county clerk, a treasurer, a register of deeds, and for the election or appointment of a drain commissioner, if the county has one, and a board of county road commissioners, and for the combining of any two or more of the foregoing offices into one office as authorized by law.'

While your question relates to all the constitutional county offices enumerated in Const 1963, art 7, Sec. 4, supra, with the exception of prosecuting attorney, the people have placed all of these county offices on the same constitutional level, except that the same person may hold both the office of county clerk and the office of register of deeds. The true question presented is whether the people have provided for the abolishment of these offices or of any of them by the framing and adoption of a county charter authorized by Const 1963, art 7, Sec. 2, supra, when authorized by the legislature as the organization of a county government in a form different from that set forth in this Constitution.

As noted in the Address to the People, 2 Official Record, Constitutional Convention 1961, p 3390, Const 1963, art 7, Sec. 2, supra, is a 'new section enabling counties, by vote of the people, to adjust their governmental structure to meet modern problems effectively.'

It is a cardinal rule of constitutional construction that meaning and effect must be given to every part of the Constitution whenever possible. Board of Control of Eastern Michigan University v Labor Mediation Board, 384 Mich 561; 184 NW2d 921 (1971). A fair reading of Const 1963, art 7, Sec. 2, supra, is not persuasive that the people have made express provision for abolishment of constitutional county officers in a county charter framed and adopted by the people of the county. Thus, the meaning of Const 1963, art 7, Sec. 2, supra, must be questioned and the circumstances leading to its adoption should be examined and the purpose sought to be accomplished should be ascertained by examination of the Address to the People and the Convention debates. Kearney v Board of State Auditors, 189 Mich 666; 155 NW 510 (1915), Advisory Opinion on the Constitutionality of 1978 PA 426; 403 Mich 631; 272 NW2d 495 (1978).

A study of the Constitutional Convention debates is not conclusive. Const 1963, art 7, Sec. 2, supra, was considered by the Constitutional Convention of 1961 as Committee Proposal 89. The second sentence of Const 1963, art 7, Sec. 2, supra, in substance, was offered as an amendment to Committee Proposal 89 by Delegates Judd, Brake and Elliott. 1 Official Record, Constitutional Convention 1961, p 1094. Each of the proponents spoke in favor of the amendment, but none of them state expressly that the constitutional county offices enumerated in Const 1963, art 7, Sec. 4, supra, may be abolished thereunder. 1 Official Record, Constitutional Convention 1961, pp 1094-95.

Delegate Pellow offered an amendment to the proposed Judd, Brake and Elliott amendment to Committee Proposal 89 to require that a county charter must provide for the election of a county clerk, a county register of deeds, a county treasurer, a sheriff and a prosecuting attorney, and spoke in favor of his amendment. 1 Official Record, Constitutional Convention 1961, p 1097. Delegates Judd, Brake and Elliott did not speak to the Pellow amendment. Only Delegate Dell addressed the Pellow amendment to the Judd, Brake and Elliott amendment to Committee Proposal 89 and he spoke about a compromise without identifying any of its terms. 1 Official Record, Constitutional Convention 1961, p 1098.

An amendment to the Judd, Brake and Elliott amendment was offered by Delegate McCauley to make the organization of government in a different form notwithstanding any other provision for the designation of county offices, their election, and that the membership of the county board of supervisors would not be elected at large. Delegates Brake and Elliott responded, but in the most general terms without any explicit reference to the abolition of constitutional county offices, only that the legislature should be trusted. The McCauley amendment was not adopted. 1 Official Record, Constitutional Convention 1961, pp 1098-99. Thus, the chief proponents of the second sentence of Const 1963, art 7, Sec. 2 supra, never expressed their intent that the legislature was empowered to authorize the electors of a county, in approving a county charter, to eliminate the constitutional county officers created by the people in Const 1963, art 7, Sec. 4, supra.

Finally, Delegates Hart and Downs offered an amendment to the Judd, Brake and Elliott amendment to require election of the prosecuting attorney, the county sheriff, and members of the county legislative body, among other matters. Although three delegates spoke in favor of the amendment, no delegate spoke against it. The Hart and Downs amendment was not adopted. 1 Official Record, Constitutional Convention 1961, p 1103.

Thereafter, the Judd, Brake and Elliott amendment to Proposal 89 was approved, 1 Official Record, Constitutional Convention 1961, p 1105, and became a part of Const 1963, art 7, Sec. 2, supra, without substantial change.

While it may have been the intent of Delegates Judd, Brake and Elliot and the majority of the delegates to permit the legislature to authorize the framing and adoption of a county charter abolishing or making no provision for the continuation of constitutional offices enumerated in Const 1963, art 7, Sec. 4, supra, neither they nor their supporters in the Convention ever stated this with even the minutest degree of clarity as the intent of the framers of the Constitution of 1963. However, mere expressions of trust in the legislature do not constitute an expression of intent of the delegates that the legislature may provide for the abolishment of the constitutional offices enumerated in Const 1963, art 7, Sec. 4, supra, rendering Const 1963, art 7, Secs. 4, 5 and 6 meaningless.

In the absence of a clear expression of intent on the part of the framers that under the second sentence of Const 1963, art 7, Sec. 2, supra, the legislature may provide for the praming and adoption of a county charter calling for a different form of organization without the constitutional county officers enumerated in Const 1963, art 7, Sec. 4, supra, so that this provision would be made inoperative by approval of the legislature, a county charter commission and the electors of a county, I am constrained to apply the principle of constitutional construction that meaning and effect be given to both Const 1963, art 7, Secs. 2 and 4, supra, and conclude that the legislature is without authority to authorize the framing and adoption of a county charter which does not provide for the election of the constitutional county offices enumerated in Const 1963, art 7, Sec. 4, supra.

Frank J. Kelley