STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5793

October 2, 1980

CONSTITUTIONAL LAW:

Const 1963, art 9, Sec. 29

COUNTIES:

Board of commissioners--fixing compensation of members of county board of canvassers

SECRETARY OF STATE:

Training classes for county boards of canvassers

In counties with a population under one million, compensation of members of a county board of canvassers may be fixed by the county board of commissioners. Actual and necessary expenses of members of such county board of canvassers incurred while performing duties within the county are reimbursable. The Legislature has fixed the compensation of members of the county board of canvassers in counties with a population of one million or more and has authorized reimbursement of actual and necessary expenses incurred in the performance of their duties within the county.

A county board of commissioners may provide compensation and reimbursement of expenses to members of a county board of canvassers who attend training classes on a voluntary basis.

The Secretary of State may provide training classes for members of county boards of canvassers, but the cost of attendance must be borne by state appropriation.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, Michigan

You have requested my opinion concerning possible conflicts between certain sections of the Michigan Election Law, 1954 PA 116; MCLA 168.1 et seq; MSA 6.1000 et seq and the provisions of 1968 PA 351, Sec. 1; MCLA 45.411; MSA 5.1102(1) providing for compensation to county boards, departments, authorities and commissions. Rephrased, your questions ask:

Sections 28 and 830 of the Michigan Election Law, 1954 PA 116; MCLA 168.28, MCLA 168.830; MSA 6.1028, MSA 6.1830 are original sections of the law and provide for the compensation of members of county boards of canvassers. These sections read, in full, as follows:

Section 24f of 1954 PA 116; MCLA 168.24f; MSA 6.1024(6), which also addresses the question of compensation to be paid to county boards of canvassers, was added to the Michigan Election Law by 1963 PA 237 and originally pertained to all counties regardless of size. Section 24f, supra, was amended by 1966 PA 81 and made applicable only to counties under one million in population. 1966 PA 81 also added Sec. 24h to the Michigan Election Law, 1954 PA 116; MCLA 168.24h; MSA 6.1024(8), to cover compensation to be paid to boards of canvassers in counties with populations over one million. Sections 24f and 24h, supra, read, in full, as follows:

It should be noted that the Michigan Election Law, supra, Sec. 682, also provides a method by which county boards of canvassers are compensated and states as follows:

The issue of compensation to be paid to county boards of canvassers was addressed by 1968 PA 351, Sec. 1, supra, which reads, in full, as follows:

Sections 28, 682 and 830 of the Michigan Election Law, supra, and 1968 PA 351, Sec. 1, are consistent with each other but are inconsistent when compared to the provisions of Sec. 24f and Sec. 24h. The primary conflict exists between 1954 PA 116, Sec. 24f and Sec. 24h, supra, and 1968 PA 351, Sec. 1, supra.

One of the principles of statutory construction is a presumption against repeal by implication between conflicting statutes. The rationale supporting the presumption is that had the legislature intended that one act repeal another act, it would have expressly provided for such in the later measure. If a repugnancy exists such that the conflicting statutes may not stand together, the last expression of the Legislature must control. Southward v Wabash Railroad Co, 331 Mich 138; 49 NW2d 109 (1951); Jackson v Corrections Commission, 313 Mich 352; 21 NW2d 159 (1946). See also OAG, 1965-1966, No 4505, p 341 (August 8, 1966), and OAG, 1967-1968, No 4604, p 269 (July 26, 1968).

Therefore, 1968 PA 351, Sec. 1, supra, having been passed in 1968, is controlling as to the amount of compensation to be paid to members of county boards of canvassers regardless of the size of the county in which they are functioning.

It is my opinion that boards of county commissioners in counties of less than one million are free to establish the compensation to be paid to members of county boards of canvassers at rates different from those provided for in Michigan Election Law, Sec. 24f, supra. In counties with a population of one million or more, the compensation of members of the board of county canvassers is fixed by the Michigan Election Law, Sec. 24h, supra.

Turning to your second question, when an inconsistency exists between two statutes and causes a repeal by implication, the earlier statute is repealed only to the extent of the inconsistency. In re Lambrecht, 137 Mich 450; 100 NW 606 (1904). Since 1968 PA 351, Sec. 1, supra, only addresses itself to the determination of compensation of members of county boards of canvassers, that portion of Section 24f of the Michigan Election Law, supra, providing for reimbursement for actual and necessary expenses which occur in the performance of the canvassers' official duties is not repealed by implication and remains binding upon county boards of commissioners.

Thus, the remaining portions of the Michigan Election Law, Sec. 24f, supra, give county boards of canvassers a clear statutory right to receive reimbursement for the actual and necessary expenses they incur while in the performance of their official duties. The refusal of boards of county commissioners to allow payment of expenses for the performance of duties by boards of county canvassers within the geographical limits of a particular county would frustrate the performance of the duties of board members since these duties are performed primarily within the county in canvassing elections and conducting recounts.

Therefore, in answer to your second question, it is my opinion that county boards of commissioners may not limit travel reimbursement only to expenditures which occur outside the geographical limits of the particular county.

Addressing your third and fourth questions, the Secretary of State, under the authority conferred upon that office by the Michigan Election Law, supra, Sec. 21, to maintain supervisory control over local election officials, has the authority to require that training classes be held for county boards of canvassers. I have been advised by your Elections Division that training sessions for county boards of canvassers are neither required nor held by that Division.

Any decision by the Secretary of State to conduct formal training sessions for members of county boards of canvassers or require that county clerks hold such training sessions must be reviewed in light of the following provisions of Const 1963, art 9, Sec. 29:

Since training classes were neither regularly provided nor required by the Secretary of State prior to the effective date of Const 1963, art 9, Sec. 29, which is December 12, 1978, it is my opinion that to require such classes at this time would also necessitate that all costs be funded by a state appropriation.

It is, therefore, my opinion that if attendance of members of a county board of canvassers at the training classes is merely optional, county boards of commissioners may, under the authority derived from 1968 PA 351, Sec. 1, supra, authorize the payment of a per diem compensation and the reimbursement of actual and necessary expenses for members of county boards of canvassers who attend such training classes.

Frank J. Kelley