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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)



Opinion No. 5776

September 10, 1980


Authority of treasurer to make refunds


Refund of jury fee for a case dismissed.

Where a party to a court action requests a jury and pays the fee therefor and the case is subsequently dismissed, the county treasurer has no authority to refund the jury fee from the county general fund.

The Honorable David S. Holmes

State Senator

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the disposition of jury fees when a Common Pleas Court case is dismissed prior to a jury trial. As you note, Common Pleas Court Rule 46.4(a) requires that 'a jury fee of twenty dollars shall be paid within one week of the commencement of pretrial.' The Court Rule is corroborated by statute in RJA, 1961, Sec. 2537; MCLA 600.2537; MSA 27A.2437, which provides:

'In every case where trial by jury is demanded, the party making the demand shall, at the time of filing the demand, pay to the clerk of the court the sum of $20.00. Failure to pay the fee within the time provided in the court rules constitutes a waiver of the right to a jury trial. Such sum shall be taxed in favor of the party paying the same, in case he recovers a judgment for his costs.'

Disposition of jury fees in the event of a dismissal prior to a case going to trial is not discussed in the statute or court rules. However, it is clear that the jury fees collected along with all other fees collected by county officials in the performance of their duties must be turned over to the county treasurer who places all fees in the county general fund. The statute which dictates this collection and transfer in all counties having a population of 1,000,000 or more, i.e. Wayne County, is 1947 PA 261, Sec. 3; MCLA 45.453; MSA 5.360(3), states:

'The said county clerk, circuit court commissioners, county auditors, prosecuting attorney, treasurer and register of deeds of any such county shall receive or collect no other compensation, except the salary above provided, for the performance or discharge of any of the duties of their respective offices, but they shall pay the fees, commissions or charges provided by law to be paid or that they may fix or charge for the performance or discharge of such duties or any duties in their said offices to the county treasurer on the last Saturday of every month, and the same shall be for the use of said county and placed to the credit of the general fund. Such payment shall in all cases be accompanied with a statement in writing of the respective officers, of the services rendered and fees collected, and that the same is true in every particular, which statement shall be verified by the oath of the officers making the same that such statement is true.'

A number of previous Attorney General opinions have spoken to the issue of refund of fees. OAG, 1947-1948, No 684, p 561, 562 (January 30, 1948), addressed the issue of a refund of a vehicle license fee and cited 61 CJ 974, 975, which provides in part:

'. . . In the absence of a valid statute no executive or administrative officer has power to refund taxes and if the power is given it must be strictly followed.'

Attorney General Black stated that the license fee rested 'upon the same footing as taxes' mentioned in the above citation, making refund of license fees impermissible without that explicit power being given by statute.

In OAG, 1949-1950, No 1185, p 493 (March 15, 1980), the Attorney General again addressed the question of refund of license fees. That opinion stated:

'The law is well settled in this jurisdiction and elsewhere that in the absence of express statute providing for the refund of license fees, no refund can properly be made.'

OAG, 1957, No 2871, p 83 (February 7, 1957), supported the above two opinions and also cited Townsend v Alger, Secretary of State, Court of Claims, Docket No. 416, which was instituted in the Court of Claims to recover a license fee. In rejecting the claim the Court stated:

'It is well settled law that in the absence of express statutory provisions for the refunding of license fees, no refund can properly be made. The act creating the Court of Claims, being Act 135 of the Public Acts of 1939 as amended, does not create an obligation upon the state to refund such a fee, therefore Petitioner is not entitled to a refund of said license fee and his petition is dismissed upon the motion of the defendant herein.'

Since there is no statute which specifically provides for the refund of jury fees, jury fees may not be refunded but must remain in the county general fund. The jury fee helps to defray the cost of the functions of county government. One of the more important of those functions is the selection of prospective jurors by the jury board. Long before the trial date the jury board must select names and mail and process questionaires and summonses. This must be accomplished in time to notify prospective jurors of their prospective jury service and provide an opportunity to determine eligibility of jurors. This mechanism is in motion before any jury case comes to trial. The jury fee aids the funding of this mechanism.

Therefore, it is my opinion that when a case is dismissed and the jury fee has been paid, the fee is collected by the county treasurer and credited to the county general fund and no refund may be made in the absence of statutory authorization to make the refund.

Frank J. Kelley

Attorney General

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