STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5772

September 5, 1980

BOARDS AND COMMISSIONS:

State Boundary Commission--authority over annexation of territory of charter townships

MUNICIPALITIES:

State Boundary Commission--authority over annexation of territory of charter townships

STATE BOUNDARY COMMISSION:

State Boundary Commission--authority over annexation of territory of charter townships

Statutory exemptions from annexation of charter township meeting prescribed standards--police protection

TOWNSHIPS:

State Boundary Commission--authority over annexation of territory of charter townships

Statutory exemptions from annexation of charter township meeting prescribed standards--police protection

Charter township--contracting with sheriff of adjoining county for police protection

Based upon the reasonableness standard, the State Boundary Commission may find that a charter township with one full-time police officer is providing police protection which, upon compliance with other applicable requirements, confers upon such township certain statutory exemptions from annexation of its territory.

A charter township without one full-time certified police officer may not enter into an agreement with the sheriff in another county to provide for police protection for the township.

The Honorable Roy Smith

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion regarding the criteria which furnish charter townships certain exemptions from annexation, contained in the charter township act, 1947 PA 359, Sec. 34(1), as last amended by 1978 PA 591; MCLA 42.43(1); MSA 5.46(1). Charter townships incorporated after June 15, 1978, must comply with all seven standards set forth in section 34(1)(a)-(g), supra, in order to be eligible for the protection from annexation which the section confers. In an annexation petition filed with the State Boundary Commission, where territory of the respondent charter township is sought to be annexed, and where the charter township demonstrates to the Commission's satisfaction that it complies with all seven criteria contained in section 34(1), supra, the township is afforded the statutorily-conferred exemptions from annexation. Your questions concern section 34(1), supra, subsection (g), which requires that the charter township provide '[p]olice protection through contract with the sheriff in addition to normal sheriff patrol or through its own police department.'

Your questions are stated as follows:

1949 PA 359, supra, Sec. 12, permits a charter township to have a police force with a township marshal and such other police as may be necessary to the public safety and welfare of the township:

While the term 'police force' as used in the above provision is not defined in 1947 PA 359, supra, it is instructive to note that section 12, supra, contains the phrases '. . . township marshal and such other policemen and watchmen as may be required' and '. . . township police force and its members' which phrases are cast both in the singular and plural. 1947 PA 359, Sec. 12, supra, authorizes a charter township to establish a police force comprised solely of a township police officer (marshal) or a police force which has as many officers as the township deems necessary for the preservation of quiet and order and the protection of persons and property within the township. In White v The Board of Supervisors of Manistee County, 105 Mich 608, 614; 63 NW 653, 654 (1895), the Court defined 'police for':

The word 'police' has been defined as an 'organized civil force for maintaining order, preventing and detecting crime, and enforcing the laws. . . .' Wyndham v United States, 197 F Supp 856, 859 (EDSC, 1961).

In 1951 PA 181, MCLA 41.851 et seq; MSA 5.2640(31) et seq, which provides certain methods for funding police protection in townships, no definition of police protection appears therein.

Inasmuch as no definition of the term 'police protection' appears in 1947 PA 359, Sec. 34(1)(g), supra, nor in the other authorities above cited, it must be concluded that the legislature, in enacting section 34(1)(g), supra, intended that the term 'police protection', and the minimum number of peace officers required in a charter township, be they full-time or otherwise, would be variable and dependent on particular characteristics of the charter township in question (eg, population, geographic size, proximity to cities, et alia). Accordingly, the number of police officers which may be deemed necessary by a charter township board to afford police protection will vary in each charter township, and the township board is provided discretion in making the determination. 1947 PA 359, Sec. 12, supra.

It must be observed that a general law township with population in excess of 2,000 citizens may vote to incorporate as a charter township, pursuant to 1947 PA 359, supra, Secs. 1 and 2. With respect to general law townships with population in excess of 5,000 citizens, pursuant to 1947 PA 359, supra, Sec. 3a, as added by 1976 PA 90, such townships may become chartered through resolution of the township board, subject to the electorate's right of referendum thereon. There exist in Michigan 1,245 townships, comprised of 61 charter townships ⁽¹⁾ and 1,184 general law townships. ⁽²⁾ With respect to the 61 charter townships, 15 have population ranging from 2,000 to 5,000; 15 have population ranging from 5,000 to 10,000; 19 have population ranging from 10,000 to 20,000; 8 have population ranging from 20,000 to 30,000; and 4 have a population in excess of 30,000. ⁽³⁾ Waterford Charter Township is the most populous charter township with a 1970 population of 59,123. ⁽⁴⁾ (1970 Decennial census data).

Based on the above facts, it is apparent that the term 'police protection' contained in section 34(1)(g), supra, may take concrete meaning only when considered in relation to a particular charter township. Thus, when a charter township seeks to avail itself of the annexation protection conferred by section 34(1), supra, and seeks to establish its compliance with all seven standards contained in section 34(1), supra, the State Boundary Commission must determine, with respect to the particular annexation in question, whether the charter township complies with the seven standards, including section 34(1)(g), supra.

In Midland Township v State Boundary Commission, 401 Mich 641; 259 NW2d 326 (1977), app dism, 435 US 1004; 98 S Ct 1873; 56 LEd 2d 386 (1978), the constitutionality of the State Boundary Commission Act, 1968 PA 191, and certain amendments to the Home Rule Cities Act, 1909 PA 279, were unanimously sustained by the Michigan Supreme Court. In discussing the criteria which the State Boundary Commission must review in reaching its determination as to the 'reasonableness' of an annexation petition, the Court stated:

While it is recognized that 1947 PA 359, Sec. 34(1), supra, does not specifically contain any 'reasonableness' standard with respect to complying with the seven standards therein enunciated, the State Boundary Commission has administratively employed the 'reasonableness' standard enunciated in Midland Township, supra, in guiding its determination whether a particular charter township complies with the seven standards of section 34(1), supra. ⁽⁵⁾ The administrative construction of a statute by those charged with its execution is entitled to the most respectful consideration and ought not to be overruled without cogent reasons. Oakland Board of Education v Superintendent of Public Instruction, 401 Mich 37, 41; 257 NW2d 73, 75 (1977). This construction of 1947 PA 359, Sec. 34(1), supra, by the State Boundary Commission is an appropriate interpretation of section 34(1), supra, in light of the Commission's wide-ranging authority. Midland Township, supra.

Thus, under the reasonableness standard as applied to section 34(1)(g), supra, the State Boundary Commission may determine, based on record evidence, that a particular charter township with modest population of 2,500 is afforded 'police protection' through the services of one full-time police officer in the township police department. On the other hand, the Commission may determine it is not reasonable to find that a charter township with a substantial population has 'police protection', for the purposes of section 34(1)(g), supra, where the township police department has one bonafide full-time officer.

It is, therefore, my opinion that the employment of one bonafide full-time certified police officer may constitute police protection, within the ambit of 1947 PA 359, Sec. 34(1)(g), supra, with respect to a particular charter township where the State Boundary Commission so finds, based upon the reasonableness standard.

With respect to your second question, I am enclosing a copy of my letter opinion to Representative Brown (October 30, 1979), which recognized the alleged right of charter townships to contract for police protection with other governmental units, but concluded, on pp 3-4, that a charter township entering into a contract for police protection with a governmental agency, other than the county sheriff for the county wherein the township was located, would not qualify for the exemption from annexation provided for in section 34(1)(g), supra.

The above-referenced letter to Representative Brown stated:

It may also be noted that Kapson v Kubath, 165 F Supp 542, (WD Mich, 1958) stated that the jurisdiction of a sheriff is restricted to the county in which he is elected, and that when the sheriff acts outside that county, the sheriff acts as a private citizen. While there is no question that a county sheriff may exercise jurisdiction outside of his county when requested by the Michigan State Police, OAG, 1975-1976, No 5031, p 612 (September 17, 1976), and he may exercise his authority outside his county in conjunction with a peace officer of the county, city, village or township in which he may be, 1927 PA 175, ch IV, Sec. 2a, as amended; MCLA 764.2a; MSA 28.861(1), the sheriff of an adjoining county may not exercise his authority in a township which is without a peace officer.

It is, therefore, my opinion in answer to your second question, that a township without a full-time police officer, may not contract with the sheriff of an adjoining county for police protection.

Frank J. Kelley

October 30, 1979.

Honorable Thomas H. Brown

State Representative

The Capitol

Lansing, Michigan 48933

Dear Representative Brown:

You have requested my opinion upon the following question:

The authority of governmental units to enter into intergovernmental agreements generally is conferred by Const 1963, art 7, Sec. 28, which provides in pertinent part:

The legislature has provided for intergovernmental agreements generally by enactment of the urban cooperation act, 1967 PA 7 (Ex Sess), MCLA 124.501 et seq; MSA 5.4088(1) et seq, which authorizes agreements between public agencies, including state government, counties, villages, townships, charter townships, etc, for the performance of governmental functions which each such governmental unit would have the authority to exercise separately. However, if a governmental unit lacks the authority to exercise a governmental function, then that public agency could not participate in an agreement for the performance of that function. Compare also, 1951 PA 35, MCLA 124.1 et seq; MSA 5.4081 et seq, and 1967 PA 8 (Ex Sess), MCLA 124.531 et seq; MSA 5.4087(1) et seq. Regarding such general authority in charter townships, see 1947 PA 359, Sec. 18, MCLA 42.18; MSA 5.46(18).

Charter townships have the authority to provide for and establish a police force pursuant to 1947 PA 359, Sec. 12, MCLA 42.12; MSA 5.46(12), and Sec. 5 of said act, MCLA 42.5; MSA 5.46(5), provides that a charter township board shall possess the powers and perform the duties of township boards in townships in addition to the powers granted by law to charter townships. 1945 PA 246, Sec. 1, MCLA 41.181; MSA 5.45(1), provides:

1951 PA 181, MCLA 41.851 et seq; MSA 5.2640(31) et seq, authorizes townships to jointly establish and maintain a police department by joint resolution. Similarly, 1967 PA 236, MCLA 123.811 et seq; MSA 5.3323(1) et seq, authorizes two or more counties, cities, villages, and townships, whether adjacent to each other or not, to enter into agreements to provide mutual police assistance to one another in case of emergencies. Section 4 of said act authorizes such municipalities to join together by contract or by the establishment of an intermunicipal police authority for the purposes of providing police services to the respective municipalities.

While townships have the statutory authority to enter into agreements regarding police service, a review of Michigan statutes discloses no express statutory authority authorizing the Department of State Police to enter into an intergovernmental agreement with a charter township to provide police services where the charter township does not have its own police department. While 1935 PA 59, Sec. 6, MCLA 28.6; MSA 4.436, provides that the Commissioner of State Police 'shall formulate and put into effect plans and means of cooperating with the local police and peace officers throughout the state for the purpose of the prevention and discovery of crimes and the apprehension of criminals, this statute was interpreted in OAG, 1975-1976, No 5031, p 612 (September 17, 1976), as authorizing the cooperation of the Director of State Police, and not the supervision over the local law enforcement function. I note that 1925 PA 211, Sec. 5, MCLA 28.225; MSA 4.455 does authorize the Department of State Police to provide State Police officers to relieve local law enforcement officers while the latter are attending a training school, upon the request of the legislative body of the municipality.

It is further my opinion that a charter township may enter into an agreement with the county sheriff, pursuant to 1945 PA 246, Sec. 1, supra, for police protection in the township; that adjoining townships may provide for a joint police department pursuant to 1951 PA 181, Sec. 1, supra; and may enter into a mutual police assistance agreement pursuant to 1967 PA 236, supra.

I note in such connection that 1947 PA 359, Sec. 34, as amended by 1978 PA 591, MCLA 42.34; MSA 5.46(34), provides for the exemption of annexation of charter townships to cities or villages where the charter township complies with the standards enumerated in said act. Among the standards, section 34(1)(g) states:

It should also be noted that subsection (g) is specific as to police protection through a contract with the sheriff or through the township's own police department, therefore indicating that the standard would not satisfy section 34 for exemption if police protection is provided for through any public agency other than the sheriff. Compare subsection (c) with regard to fire protection by contract, which is unspecific as to which public agency would provide such service.

Based on the foregoing, it is my opinion that a charter township entering into an intergovernmental agreement for police protection with a governmental agency other than the county sheriff would not qualify for the exemption from annexation provided in 1978 PA 591.