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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. 5946 August 6, 1981 MANDAMUS: Action of village council to fill vacancy in office of president VILLAGES: President--appointed by council to fill vacancy in office Vote of trustee serving as president pro tem A village council must act within a reasonable period of time to appoint a person to fill a vacancy in the office of village president. Mandamus will lie to compel action by the village council. A trustee serving as president pro tem and temporarily acting as village president, the office of president being vacant, may vote upon all questions before the village council, including the vacation of a street. Honorable David C. Hollister State Representative The Capitol Lansing, Michigan Citing the general law village act, 1895 PA 3; MCLA 61.1 et seq; MSA 5.1201 et seq, you have requested my opinion upon the following restated questions: When a vacancy occurs in the office of village president, does a village council have a required period of time in which to appoint a new president, and would failure to appoint within the required time constitute a violation of 1895 PA 3? Is a president pro tem of a village authorized to vote on the vacation of a street, in the absence of the president by virtue of disability, or when the office of president is vacant by virtue of resignation? The filling of vacancies in village offices is provided for by 1895 PA 3, ch II, Sec. 13; MCLA 62.13; MSA 5.1227, which pertinently states: (1) 'Any vacancy occurring in the office of president, trustees or any other elective office shall be filled by appointment by the council. . . .' Neither this section nor any other section in said act prescribes a time period within which an appointment must be made to fill a vacancy. A similar question involving a vacancy in county office was considered in OAG, 1979-1980, No 5613, p 517 (December 21, 1979), which stated: '. . . Although that section contains no express mention of the phrase 'reasonable amount of time', the duty to provide for an election or to make an appointment within a reasonable amount of time is necessarily implied. The determination of what is a reasonable amount of time depends upon attendant circumstances in each case. 'In Bowen v The Detroit City Railway Co, 54 Mich 496, 501; 20 NW 559, 562 (1884), the Court said: 'The question of reasonable time, in the absence of controversy respecting the facts, or where they are conceded, is one of law for the court to determine, and is defined to be 'so much time as is necessary, under the circumstances, to do conveniently what the contract or duty requires, in the particular case, should be done".' OAG, No 5613, supra, concluded that there was a duty to fill a vacancy within a reasonable period of time, that a seven-month period was unreasonable, and that mandamus would lie to compel a county board of commissioners to make the appointment. Also compare Burns v Stenholm, 310 Mich 639, 648; 17 NW2d 781 (1945), regarding a duty to make appointments to fill vacancies. It is, therefore, my opinion that under 1895 PA 3, ch II, Sec. 13, supra, a village council has a reasonable period of time in which to appoint a new village president to fill a vacancy in that office. A failure to make the appointment within a reasonable period of time would constitute a violation of the duty to fill vacancies, and mandamus may lie to compel such action. OAG, No 5613, supra. Addressing your second question, the appointment of a village president pro tem is provided for in 1895 PA 3, supra, ch V, Sec. 3; MCLA 65.3; MSA 5.1266: 'On the second [2nd] Monday in April in each year, or as soon thereafter as may be, the council shall appoint one [1] of their number president pro tempore of the council, who in the absence of the president shall preside at the meetings thereof, and exercise the powers and duties of president. In the absence of the president and president pro tem., the council shall appoint one [1] of their number to preside.' [Emphasis supplied.] 1895 PA 3, supra, ch IV, Sec. 4; MCLA 64.4; MSA 5.1246 states: 'In the absence or disability of the president, the president pro tempore of the council shall perform the duties of the president.' The duties of the village president are provided for in 1895 PA 3, ch IV, supra, Sec. 1; MCLA 64.1; MSA 5.1243: 'The president shall be the chief executive officer of the village. He shall preside at the meetings of the council. He shall be deemed a member of the council but he shall have no right to vote upon any question except in case of a tie, in which case he shall give the deciding vote. . . .' [Emphasis supplied.] A general law village council is comprised of the village president and six trustees, all of whom are elected officials (along with the village clerk and treasurer). 1895 PA 3, supra, ch II, Sec. 1; MCLA 62.1; MSA 5.1215. With respect to vacation of a street, 1895 PA 3, ch V, supra, Sec. 5; MCLA 65.5; MSA 5.1268 provides: '(1) . . . a street, alley, or public ground [shall not be] vacated . . . except by a concurring vote of 2/3 of the trustees elect. . . .' It should also be noted that with the exception of actions requiring two-thirds vote under this section, all other action of the village council is by majority vote of the council. 1895 PA 3, supra, ch VI, MCLA, 66.1; MSA 5.1271. In McCarthy v Village of Marcellus, 32 Mich App 679; 189 NW2d 80 (1971), the Court voided a village ordinance amending a contract for the construction and financing of a sewer system. The ordinance would have required the imposition of taxes and assessment on village residents. Three of the trustees elect voted yes, three voted no, and the village president voted yes. The Court nullified the ordinance because 1895 PA 3, ch V, Sec. 5, supra, requires a two-thirds vote of the trustees elect. The Court stated that the village president may not be considered a 'trustee elect' for purposes of the two-thirds vote requirement of 1895 PA 3, ch V, Sec. 5, supra. However, where the village council is otherwise permitted to pass ordinances for various purposes by a majority vote of the council, as provided in 1895 PA 3, ch VI, Sec. 1, supra, the village president may not vote except in case of a tie, in which the president shall cast the deciding vote. 1895 PA 3, ch IV, Sec. 1, supra. 'Had the ordinance or resolution in question been one to accomplish a purpose requiring only a majority vote . . ., the president could have legally cast the deciding vote. . . . However, in the instant case, the action had to do with imposing a tax . . . which requires a two-thirds vote of all the trustees elect in order to be effective. The statute, . . ., requires the subject resolution to be passed by a concurring vote of two-thirds of all the trustees elect which would be four of the six trustees. Only three of the trustees voted in favor and therefore the requirements of the statute were not met.' [Citations omitted.] [Original emphasis.] 32 Mich App 679, 688. Accordingly, a duly-elected village president (or appointed village president, in the case of a vacancy which has been filled) may not vote on any of the matters specified within 1895 PA 3, ch V, Sec. 5, supra, which require a two-thirds vote of the trustees elect. McCarthy, supra. In the case at hand, involving vacation of a street, such action statutorily requires a two-thirds vote of the trustees elect under 1895 PA 3, ch V, Sec. 5, supra, and, thus, is a matter upon which an elected (or appointed) village president may not vote, even in the event of a tie. McCarthy, supra. However, the statutory prohibition against voting by an elected (or appointed) village president on a matter within the purview of 1895 PA 3, ch V, Sec. 5, supra, does not apply to a village president pro tem who presides at council meetings in the absence or disability of the village president. See 1895 PA 3, ch IV, Sec. 4, supra, and ch V, Sec. 3, supra. The village president pro tem is also a duly-elected village trustee and member of the village council which appoints from their ranks the president pro tem. In OAG, 1928-1930, p 730 (January 27, 1930) the question raised was whether the president pro tem sitting as village president in the absence of the village president could vote on expending money for purchase of a fire truck, which action could be taken by majority vote of the village council under 1895 PA 3, ch X, Sec. 2; MCLA 70.2; MSA 5.1398. In concluding that the president pro tem (acting as village president) could legally vote on the question, the Attorney General stated: 'The president pro tem, is at all times a member of the village council and the fact that he may be for the time being performing the duties of the president would not in my opinion disqualify him from voting.' (p. 731). Since a village president pro tem who acts as village president in the case of absence or disability of the president is, and remains, a trustee elect, under the reasoning of McCarthy, supra, and OAG, 1928-1930, supra, such person may vote upon those matters specified in 1895 PA 3, ch V, Sec. 5, supra, requiring a two-thirds vote of the trustees elect. However, in the event the president pro tem is appointed to the vacant position of village president, such person no longer acts as a trustee servng as president pro tem, but as president, and as president, is statutorily prohibited from voting on any matter involving a two-thirds vote of the trustees elect, such as vacation of a street. It is my opinion, therefore, that a council member who is appointed president pro tem and who temporarily performs the duties of the vilage president in the absence or disability of the president may vote upon all village matters, including those requiring two-tirds vote of the trustees elect, such as vacation of a street. It is further my opinion that in the event a council member, including the president pro tem, is appointed as village president to fill a vacancy in that office, such person as president is statutorily prohibited from voting on any village matter requiring a two-thirds vote of the trustees elect. Frank J. Kelley Attorney General (1)
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