STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 5945

August 6, 1981

COUNTIES:

Treasurer receiving salary and seeking to retain fees

A county treasurer receiving a salary fixed by the county board of commissioners may not retain fees collected for abstracts of taxes authorized by 1895 PA 161.

Barry L. Shantz

Oscoda County Prosecuting Attorney

Box 425

Mio, Michigan 48647

You have requested my opinion upon the following question:

1895 PA 161, Sec. 1, as amended; MCLA 48.101; MSA 5.711, provides for the collection of fees for preparing abstracts of taxes, and, in pertinent part, states:

1919 PA 237; MCLA 45.401 et seq, MSA 5.911 et seq, authorizes the payment of salaries as full compensation in lieu of fees to certain county officials. ⁽¹⁾ 1919 PA 237, supra, Sec. 1, provides:

It has long been held under this legislation that county officers having a fixed compensation 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. Pray v Ticknor, 253 Mich 460; 235 NW 220 (1931); ⁽³⁾ Board of Supervisors of Jackson County v Dicker, 260 Mich 78; 244 NW 235 (1932); 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).

OAG, 1923-1924, p 38, supra, referred to in your letter, recognized that certain counties might be operating under local acts, and would, thus, be excepted from the application of 1919 PA 237, supra; in that circumstance, the opinion suggested that action taken by the county board of supervisors ⁽⁴⁾ should specifically indicate whether fees were authorized to be retained under the local act, or that salaries were established under 1919 PA 237, supra, and, therefore, could not be retained. OAG, 1923-1924, p 38, supra, should not be interpreted as requiring additional action on the disposition of fees, or as allowing the retention of fees, when 1919 PA 237, supra, is applicable.

The decision of the Michigan Court of Appeals in City of Livonia v Clark, 15 Mich App 342; 166 NW2d 601 (1968), lv den 381 Mich 807 (1969), is inapplicable for the proposition that fees may be retained, in addition to salaries, in the absence of statute, charter or ordinance providing that compensation or salary shall be in lieu of all fees and that such fees shall also be paid into the municipality's general fund. OAG, 1923-1924, p 38 (September 20, 1922), is offered for substantially the same conclusion. However, in the Clark case, the question involved retention of fees by a city clerk, which was governed by city charter provisions. The Clark court did discuss the circumstances under which disposition of fees was controlled by legislation providing that salary was in lieu of all fees, and cited cases, infra, indicating that fees could not be retained by the officer collecting the fees, in light of such legislation.

It is my opinion, therefore, that a county treasurer, authorized by 1895 PA 161, supra, to collect fees for abstracts of taxes, may not retain such fees, when the treasurer is paid a salary which is compensation in full for all services, pursuant to 1919 PA 237, supra. When a local or special act of the legislature is in effect in a particular county, 1919 PA 237, supra, would be inapplicable and the disposition of fees would depend upon the provisions of the local or special act.

Frank J. Kelley