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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)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 5942

July 29, 1981

COUNTIES:

Retention of fees by county officials receiving salaries

Prosecuting attorney--retention of fees where county board of commissioners provides salary

County officers, except the prosecuting attorney, in a county with a population of less than 1,000,000 persons are precluded by State law from retaining fees if such county officers receive salaries fixed by the county board of commissioners.

A county prosecuting attorney in a county with a population of less than 1,000,000 persons receiving a salary fixed by the county board of commissioners is not barred by State law from collecting fees.

Michael W. LaBeau, Esq.

Prosecuting Attorney

Monroe County

29 Washington Street

Monroe, MI 48161

Your correspondence indicates that the Monroe County Board of Commissioners, on October 28, 1980, adopted a motion establishing the 1981 annual salaries of elected officials of the county. Subsequently, at the same meeting, the Board adopted another motion providing that the annual salaries shall be full compensation in lieu of fees and that all fees shall be paid to the county general fund.

Based upon these facts you request my opinion on the following questions:

1. When a county board of commissioners establishes the salaries of county officials in one motion, would a subsequent motion at the same meeting providing that such salaries were full compensation in lieu of fees have any validity or effect on the disposition of fees?

2. Does a county board of commissioners have authority to establish an annual salary for the prosecuting attorney and provide that such salary is full compensation for all services in lieu of the fee provided for by RS 1846, ch 84; MCLA 552.45; MSA 25.121?

Const 1963, art 7, Sec. 9, provides:

'Boards of supervisors (1) shall have exclusive power to fix the compensation of county officers not otherwise provided by law.'

The disposition of fees, when salaries are established for certain enumerated county officers, is provided by 1919 PA 237; MCLA 45.401 et seq; MSA 5.911 et seq:

'Sec. 1. (1) The county board of commissioners of each county in this state may direct the payment to the sheriff, under-sheriff, and deputy sheriffs and to the county clerk, county treasurer, register of deeds, and their deputies out of the general fund in the treasury of the county, salaries as the board considers proper. The salaries may be fixed and determined by the county board of commissioners at its annual meeting held in October before the commencement of the terms of the officers. The salaries shall be compensation in full for all services performed by the sheriff, under-sheriff, and deputy sheriffs and by the county clerk, county treasurer, register of deeds, and their deputies. However, this section shall not apply to a county now operating under a local or special act, until the local or special act is repealed. . . . (2)

'Sec. 2. The sheriff, under-sheriff and deputy sheriffs and the county clerks, county treasurers and registers of deeds and their deputies who receive a salary shall collect and make itemized statements of all fees required by law for the service of any process other than that of the county, and of all other fees collected by them which said fees shall be paid by them when collected to the county treasurer, on or before the last day of each month taking duplicate receipts therefor.

'Sec. 3. The salaries aforesaid shall be paid monthly by the county treasurer, upon a warrant issued by the county clerk, but not until an itemized statement of all fees collected and paid over to the county treasurer, as aforesaid, has been sworn to and filed with the county treasurer and duplicate of the receipt thereof filed with the county clerk.

'Sec. 4. All moneys received by the county treasurer by virtue of this act shall be credited to the general fund of the county.' (3) (Emphasis added.)

Thus, it is clear that the enumerated county officers having a fixed salary in full for all services, in lieu of all fees, may not personally retain the fees they collect, but are required to pay those fees into the county's general fund. Board of Supervisors of Jackson County v Dicker, 260 Mich 78; 244 NW 235 (1932); compare City of Livonia v Clark, 15 Mich App 342; 166 NW2d 601 (1968); lv den 381 Mich 807 (1969). See also OAG, 1937-1938, p 203 (March 8, 1937); OAG, 1939-1940, p 497 (May 9, 1940); OAG, 1941-1942, No 21903, p 453 (December 23, 1941); OAG, 1961-1962, No 4115, p 618 (December 11, 1962); and OAG, 1963-1964, No 4270, p 306 (March 2, 1964).

1919 PA 237, supra, authorizes county boards of commissioners to establish annual salaries for the designated county officials. Under this legislation, once such salaries are established, it is required that those salaries be compensation in full for all services and in lieu of all fees, which are required to be collected, accounted for and paid into the county's general fund. Unless a local or special act of the legislature is in effect in a particular county, which would make 1919 PA 237, supra, inapplicable and which would allow the retention of fees, the payment of fees to the general fund is mandatory upon establishment of the salaries. Although the county board of commissioners has the discretion under 1919 PA 237, supra, to establish the amount of salary, it is not given the authority to govern the disposition of fees which is controlled by the statute. Thus, when a county board of commissioners establishes the amount of salary for county officials under 1919 PA 237, supra, it would be with the knowledge that county officials would not be permitted to retain fees in addition to the established salary.

No local act was found, effective in Monroe County, providing for the retaining of fees by local officials as a part of their compensation, and the last sentence of 1919 PA 237, Sec. 1, quoted supra, is not germane. Where, however, such a local act is in effect in other counties, then 1919 PA 237, Sec. 1, supra, would not apply, and the local act would control.

Therefore, when in their first motion on October 28, 1980 (4) the Monroe County Board of Commissioners established the annual salaries of those county officials designated in 1919 PA 237, supra, Sec. 1, their action was confined to setting the salaries for such officials and did not extend to the disposition of fees. The second motion of the county board specifying that such salaries were full compensation in lieu of fees, although coinciding with the statutory provision, could have no control over the disposition of the fees, the subject of which was statutorily foreclosed.

It is, therefore, my opinion that the second motion of the Monroe County Board of Commissioners, which refers to the disposition of fees, has no effect because the disposition of fees is governed by 1919 PA 237, supra, requiring that fees collected by the enumerated officers be paid into the county's general fund.

Recognizing that 1919 PA 237, supra, does not refer to the prosecuting attorney, (5) examination of other authority is appropriate with regard to your second question.

The compensation of prosecuting attorneys is provided for by RS 1846, ch 14, Sec. 59, as amended by 1978 PA 489; MCLA 49.159; MSA 5.757, which provides:

'The prosecuting attorney shall receive compensation for his or her services, as the county board of commissioners, by an annual salary or otherwise, orders and directs.' (Emphasis added.)

The fee you refer to is authorized by RS 1846, ch 84, Sec. 45; MCLA 552.45; MSA 25.121:

'. . . For every case which the prosecuting attorney investigates, and in which he appears by and with the consent of the court, he shall receive the sum of $5.00, to paid by the county treasurer upon the certificate of the circuit judge that such services have been performed. . . .'

The above legislation indicates that prosecuting attorneys are permitted to retain the fee and are not precluded from doing so. To summarize: The requirement of 1919 PA 237, supra, that fees be paid to the general fund does not apply to the prosecuting attorney in a county of less than 1,000,000 persons who is excluded from the statute; RS 1846, ch 14, Sec. 59, supra, would authorize, and does not prohibit, payment of the fee; and RS 1846, ch 84, Sec. 45, supra, requires payment of the fee. (6) Unless a local or special act of the legislature is in effect in a particular county still operating as an exception to the general law, (7) the prosecuting attorney would be permitted to retain the fee mandated by RS 1846, ch 84, Sec. 45, supra.

It is, therefore, my opinion that a county board of commissioners has authority to establish the annual salary of the prosecuting attorney, but does not have the authority to provide that such salary shall be in lieu of the described fee in a county with a population of less than 1,000,000 persons.

Frank J. Kelley

Attorney General

(1) By virtue of 1966 PA 261, Sec. 16, as amended by 1969 PA 137; MCLA 46.416; MSA 5.359(16), reference to county boards of supervisors shall be deemed to mean county boards of commissioners.

(2) Subsection (2) provides that when a county has a county officers compensation commission the compensation of each nonjudicial elected officer of the county shall be determined by that commission.

(3) Similar provisions for counties having a population of 1,000,000 or moe appear in 1947 PA 261; MCLA 45.451 et seq; MSA 5.360(1) et seq. It should be noted that the Office of Prosecuting Attorney is enumerated in the statute so a different rule applies to office of prosecuting attorney in such counties. For additional provisions regarding salaries of particular county officials, see RS 1846, ch 14, Sec. 43; MCLA 48.43; MSA 5.689; Sec. 67, MCLA 50.67; MSA 5.837; and Sec. 90, MCLA 53.90; MSA 5.982.

(4) The timeliness of this action is not in question, noting that it was taken in advance of November 1, as required by 1879 PA 154; MCLA 45.421; MSA 5.1101.

(5) Compare 1947 PA 261, supra, which does. The doctrine expressio unius est exclusio alterius, express mention in a statute of one thing implies the exclusion of other similar things, applied to 1919 PA 237, supra, would exclude the prosecuting attorney from the statute's application. See Sebewaing Industries, Inc v Village of Sebewaing, 337 Mich 530; 60 NW2d 444 (1953). The legislature, cognizant of 1947 PA 261, supra, when it subsequently amended 1919 PA 237, supra, could have included the prosecuting attorney in 1919 PA 237, supra; the omission appears to be deliberate, given the similarity between the two statutes; application of the doctrine is therefore appropriate. The omission suggests a legislative intent that prosecuting attorneys in counties under 1,000,000 population may be permitted to retain such fee in addition to salaries.

(6) It has been held that a prosecuting attorney is entitled to collect the fee referred to in RS 1846, ch 84, Sec. 45, supra. See OAG, 1947-1948, No 39, p 176 (January 23, 1947). Compare O'Hara v Berrien Circuit Judge, 192 Mich 459; 158 NW 831 (1916); and OAG, 1914, p 125 (June 30, 1913); but see OAG, 1915, p 594 (June 16, 1915); OAG, 1928-1930, p 286 (March 26, 1929), where the Prosecutor was precluded by a local act from retaining the fee.

(7) See Township of Port Huron v Board of Auditors of St Clair County, 269 Mich 326; 257 NW 833 (1934).

 


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