STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5654

February 15, 1980

DOGLAW:

Reimbursement by county for damages to livestock caused by dogs

COUNTIES:

Reimbursement for damages to livestock caused by dogs

JUSTICE OF PEACE:

Abolishment of office

No member of the executive or legislative branch of a township government may exercise powers of the Justice of the Peace conferred by the Dog Law.

Unless the Legislature amends the Dog Law to designate a township officer to exercise the power of determination of damages to be paid to the owner of livestock damaged by dogs, the county board of commissioners may not reimburse the owner of livestock for damages caused by dogs.

Honorable Thomas Guastello

State Senator

The Capitol

Lansing, Michigan

You have requested my opinion on the following question:

The Dog Law of 1919, 1919 PA 339; MCLA 287.261 et seq; MSA 12.511 et seq, provides for the protection of livestock and poultry from damage by dogs and for the determination and payment of money damages from county funds for losses caused by an attack on livestock by dogs.

A person sustaining any loss or damages to any livestock or poultry by dogs may complain in writing to the township supervisor or a trustee of the township in accordance with 1919 PA 339, supra, Sec. 20, as last amended by 1972 PA 349. Under this section of the statute, the township supervisor or a township trustee appointed by the township board is required to examine the place where the alleged damage was sustained and the livestock or poultry injured or killed, examine any witness, and determine whether any damage has been sustained and the amount thereof. It also provides that if the appropriate township officer learns of the identity of the owner of the dog causing the damage to the livestock or poultry, the township official may request the district court judge to issue a summons commanding the owner to appear before the township officer and show cause why the dog should not be killed. Upon the return day fixed in the summons, this section further provides that the township officer shall determine whether the loss or damage to the livestock was caused by the dog, and upon such determination the sheriff or animal control officer shall kill the dog wherever found. Finally, 1919 PA 339, Sec. 20, supra, states that any owner or keeper of the dog or dogs shall be liable to the county in a civil action for all damages and costs paid by the county on any claims as hereinafter provided.

The legislative history of this section indicates that it was also amended by 1968 PA 38 to substitute the term 'township supervisor or appointed trustee of the township' for 'justice of the peace' throughout the section.

1919 PA 339, supra, Sec. 21 provides:

While the legislature, by means of 1968 PA 38, eliminated the reference to the justice of the peace in 1919 PA 339, Sec. 20, supra, it made no such change in 1919 PA 339, Sec. 21, supra. ⁽¹⁾

In Titus v Chase, 126 Mich 621; 86 NW 137 (1901), judicial review was sought of the determination of the justice of the peace as to the amount of damages sustained to livestock killed or wounded by dogs pursuant to 1897 CL 5600. The court found that the statute provided for no trial of the question of fact before the justice of the peace, the determination being made on viewing of the injured or dead livestock. Thus, the proceeding for the determination of damages was summary and not open to review by the courts. A predecessor statute, 1917 PA 347, came before the Michigan Supreme Court in Fremont Canning Co v Waters, 209 Mich 178; 176 NW 577 (1920), on the ground, inter alia, that the provisions deprived the township of property without due process of law. The court noted that the authority to determine the damages had been vested in the township board, but by 1917 PA 347, it was reposed in a justice of the peace of the township, and upheld the power of the legislature to transfer such authority. The court found that the monies in the fund to pay for damages to livestock was not the property of the township and, therefore, the township was not deprived of its property without due process of law.

Implicit in these holdings is the conclusion that a justice of the peace, in determining the amount of damages, is exercising an administrative function. Township of Dearborn v Dearborn Township Clerk, 334 Mich 673; 55 NW2d 201 (1952), held the justice of the peace to be a judicial officer and it was unconstitutional to fix duties of a legislative or administrative character in such judicial office. It must follow that 1919 PA 339, supra, Sec. 21, violates Const 1963, art 3, Sec. 2, which prohibits a person exercising powers in one branch to exercise powers properly belonging under another branch, except as expressly provided in the Constitution.

Assuming, arguendo, that the legislature conferred a judicial function upon the justice of the peace by means of 1919 PA 339, Sec. 21, supra, that office no longer exists and no member of the executive or legislative branch of the township may exercise powers conferred in this portion of the Dog Law of 1919, supra. Consequently, the legislature should consider amending 1919 PA 339, Sec. 21, supra, to designate the township officer to exercise the duty of determining damages to be paid the owner of dead or wounded livestock if the county board of commissioners is to discharge its duties as specified in 1919 PA 339, Sec. 23, supra.

In view of this response, it is not necessary to address the question of whether a county board of commissioners may establish a standard maximum value of compensation to owners of livestock killed or injured by dogs.

Frank J. Kelley