STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5839

January 14, 1981

LIQUOR CONTROL ACT:

Enforcement by township police department

TOWNSHIP:

Enforcement of liquor law

Members of a township police department may enforce the civil infraction provisions of the Liquor Control Act.

Township police officers may not enforce an ordinance providing for criminal penalties for violation of a township ordinance dealing with the same violations.

Honorable John Bennett

State Representative

The Capitol

Lansing, Michigan

Referring to 1933 Ex Sess PA 8, Sec. 33c(1), as added by 1978 PA 531; MCLA 436.33c(1); MSA 18.1004(3)(1), you inquire whether a general law township police department possesses authority to enforce the provisions of 1933 Ex Sess PA 8, supra. You also inquire whether a township police department may enforce township ordinances, corresponding to 1933 Ex Sess PA 8, Sec. 33c(1), supra, but which contain criminal sanctions.

1933 Ex Sess PA 8, Sec. 33c(1), supra, provides:

1933 Ex Sess PA 8, Sec. 33c(1), supra, is not unlike 1933 Ex Sess PA 8, Sec. 1; MCLA 436.1; MSA 18.971, which pertinently provides:

It should be observed that neither 1933 Ex Sess PA 8, Sec. 33b nor Sec. 1, supra, specifically enumerated a member of the township police department to enforce its provisions.

The Attorney General, in OAG, 1958, No 3221, p 129 (May 14, 1958), considered the question whether members of a township police department may enforce the provisions of 1933 Ex Sess PA 8, supra, within the township or if the township board may contract with the county sheriff of the county in which it is located to enforce the provisions of the statute. This opinion reviewed OAG, 1947-1948, No 807, p 744 (June 30, 1948), which held that the township board could not contract with the county sheriff for such enforcement in the absence of statutory authority and concluded that OAG, No 807, supra, was no longer applicable in light of 1945 PA 246, Sec. 1; MCLA 41.181; MSA 5.45(1), which then provided:

Relying upon Dearborn Township Clerk v Jones, 335 Mich 658, 662; 57 NW2d 40 (1953), and Remus v City of Grand Rapids, 274 Mich 577, 581; 265 NW 755 (1936), the Attorney General concluded that 1933 Ex Sess PA 1, Sec. 1, supra, and 1945 PA 246, Sec. 1, supra, being in para materia and being taken together as part of one system of state liquor control enforcement, a township may enforce the provisions of 1933 Ex Sess PA 8, supra, by means of its own police department or through contract with the county sheriff to the extent that township funds are provided therefor.

It must follow that 1933 Ex Sess PA 8, Secs. 1 and 33c, supra, and 1945 PA 246, Sec. 1, supra, are in para materia as part of one system for liquor control enforcement in the townships.

It is, therefore, my opinion that members of a township police department are authorized to enforce, within the township, the civil infraction provisions of 1933 Ex Sess PA 8, Sec. 33b, supra.

In your second question you ask whether a township may enforce its own ordinance prohibiting persons under the age of 21 from purchasing, consuming upon licensed premises or possessing alcoholic liquors under criminal penalty.

1933 Ex Sess PA 8, Sec. 33c(1), supra, as added by 1978 PA 531, supra, empowers township police officers to enforce 'a local ordinance corresponding to that section [MCLA 436.33b; MSA 18.1004(2)] for which a civil fine is proscribed.' This statute may not be read to empower township police officers to enforce local ordinances corresponding to 1933 Ex Sess PA 33, Sec. 33b; MCLA 436.33b; MSA 18.1004(2), which impose criminal penalties. A review of the legislative history of amendatory 1978 PA 531 confirms this to be the legislative intent. Resort to the history of this amendatory statute and of the proceedings attending its actual passage through the Legislature as disclosed by the legislative journals is appropriate to determine legislative intent. Liquor Control Commission v Fraternal Order of Eagles, Aerie No 629, 286 Mich 32; 281 NW 427 (1938).

Amendatory 1978 PA 531, supra, was introduced in the House as House Bill 6731, in part, to amend 1933 Ex Sess PA 8, Sec. 33b, supra, to impose certain civil penalties for the purchase, consumption upon licensed premises or possession of alcoholic liquor by persons under the age of 21 years and to add a new subsection (4) thereto to read as follows:

The Town and Counties Committee of the House reported House Bill 6731 and recommended that a substitute be adopted and the bill passed. 3 HJ 3609 (1978). The substitute omitted proposed subsection (4) quoted above and offered instead a new subsection (3) to read as follows:

On third reading, an amendment to proposed subsection (3) was adopted to strike out the term 'ORDINANCE' and insert in its place 'MAJORITY VOTE OF THE QUALIFIED ELECTORS AT A GENERAL OR SPECIAL ELECTION OR A REFERENDUM ON THAT QUESTION.' Immediately thereafter, another amendment was adopted striking all of subsection (3). 3 HJ 3611 (1978). House Bill 6731 was then passed without further change. 3 HJ 3612 (1978).

The Senate adopted an amendment to House Bill 6731 to add, in part, section 33c(1), quoted in full above. 3 SJ 2639, 2640 (1978). The House concurred in the Senate amendments. 3 HJ 3855, 3856 (1978).

This review of amendatory 1978 PA 531 demonstrates the manifest intent of the Legislature that township police officers may not enforce township ordinances providing for criminal penalties for the purchase, consumption upon licensed premises or the possession of alcoholic liquor by persons under the age of 21 years within the township.

It is, therefore, my opinion in answer to your second question that township police officers may not enforce a township ordinance prohibiting persons under the age of 21 years from purchasing, consuming upon licensed premises or possessing alcoholic liquors and subjecting such persons to criminal penalties for violation of the ordinance.

Frank J. Kelley