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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. 6136 March 25, 1983 CITIES: Home rule cities--authority of mayor to veto a resolution of the city council making an appointment to fill a vacancy in office The Mayor of the City of Westland may veto a resolution adopted by the City Council making an appointment to fill a vacancy in an elected city office. Honorable William Faust State Senator The Capitol Lansing, Michigan Honorable Justin Barns State Representative The Capitol Lansing, Michigan You have requested my opinion concerning the veto power of the Mayor of the City of Westland over a resolution passed by the Westland City Council making an appointment to fill a vacancy in an elected city office. Your question may be stated as follows: May the Mayor of the City of Westland veto action taken by the City Council to fill a vacancy created by the election of one of its members to the State Legislature? 1923 PA 199, Sec. 7, MCLA 201.37; MSA 6.717 states: 'Whenever a vacancy shall occur in an elective or appointive village or city office, it shall be filled in the manner provided by law or charter governing the filling of vacancies in the village or city in which the vacancy occurs.' Other than the foregoing statute, the Legislature has not 'provided by law,' the manner in which vacancies of this nature may be filled. Therefore, an examination must be made of the relevant provisions, if any, of the Westland Charter regarding the veto power of the Mayor over appointment to fill a vacancy in an elective office by the City Council. Section 4.6 of the Westland Charter sets forth the manner in which vacancies in elective offices are to be filled: 'If a vacancy occurs in any elective office, then the council by a majority vote of its members shall fill such vacancy only until the next general City election, at which election the unexpired term, if any, shall be filled by vote of the qualified electors of the City.' The Westland Charter, Sec. 7(1) further provides: 'The official actions of the Council shall be by ordinance or resolution, adopted by not less than a majority of the Council in the case of ordinances or not less than a majority of a quorum of the Council in the case of resolutions, unless otherwise required by law or this Charter. Action of the Council by resolution shall be limited to matters required or permitted to be so done by law or relating to the internal affairs or concerns of the City. All acts of the Council carrying a penalty for the violation thereof shall be by ordinance. Each ordinance shall be identified by a short title and by a number or by a code section number when and after the ordinances are codified. All other acts of the council which do not constitute ordinances shall be deemed to be resolutions.' (Emphasis supplied.) The power of the Mayor to veto actions of the City Council is set forth in section 7.13 of the Westland Charter: 'No ordinance or resolution of the Council shall have any force or effect if, within seventy-two (72) hours after the adoption thereof, the mayor, or persons acting in his stead according to the provisions of this Charter, shall file in the office of the Clerk a notice, in writing, suspending the operation of such ordinance or resolution and setting forth his reasons therefor.' (Emphasis supplied.) In interpreting provisions of a city charter, rules of construction utilized in construing statutes are applicable: 'In construing provisions of the fundamental law of the city the general rules recognized in cases involving the interpretation of statutes are applicable. The inquiry must be directed to ascertaining the intention of the people . . . in the adoption of their charter. Provisions pertaining to a given subject matter must be construed together, and if possible harmonized. It may not be assumed that the adoption of conflicting provisions was intended. One provision may not be construed in such manner as to render another of no effect if such result can be avoided. It is also true that under ordinary circumstances general provisions must yield to a specific mandate. (citations omitted)' Brady v City of Detroit, 353 Mich 243, 248; 91 NW2d 257, 259 (1958). Furthermore, in construing city charters, the language must be given its plain meaning and no words may be treated as surplusage. City of Sterling Heights v General Employees Civil Service Commission, 81 Mich App 221, 224; 265 NW2d 88, 90 (1978). The courts have utilized the general rules recognized in cases involving interpretation when examining the interrelationships of the authority of city councils and the veto power of mayors under city charters on several occasions. In Livonia Drive-In Theatre v City of Livonia, 363 Mich 438; 109 NW2d 837 (1961), the court discussed the authority of the mayor to veto a license for a drive-in theatre that had been approved by the city council. The plaintiff claimed that the mayoral veto was improper because the action of the city council in approving the license was merely administrative and the authority of the mayor to veto actions extended only to resolutions and ordinances adopted by the city council. The Livonia Charter stated that the council may act only by ordinance or resolution, and it further provided that the mayor had the authority to veto proceedings of the council, unless otherwise provided by law. The court at p 445, resolved the problem as follows: 'On the issue as to the mayor's authority the charter is conclusive. In the framing and adoption of said instrument the electors of the city had the right under the Constitution and statutes of the State to persuade and regulate the authority of the council and also of the mayor with respect to administrative matters of the character in question here. . . .' Thus, the court upheld the right of the mayor to veto the action of the city council based upon the wording of the charter which did not specifically limit mayoral authority to veto proceedings of the council. In Swanson v City of Southfield, 365 Mich 131; 112 NW2d 63 (1961), a council resolution designating an official newspaper for the City of Southfield was vetoed by the mayor. The Southfield Charter had provisions substantially similar to those here in issue. The charter included a provision stating that the council may act only by ordinance or resolution and a provision setting forth the mayor's authority to veto all ordinances, resolutions and proceedings of the council. The court in adopting the reasoning in Livonia Drive-in Theatre v City of Livonia, supra, stated, in part, at p 135: 'The charter of the city of Southfield extends broader power of veto ('all ordinances, resolutions, proceedings of the council') than did the charter of Livonia which contained the phrase 'except as otherwise in this charter provided." It is to be observed that the Westland Charter has no limitation on the power of the Mayor to veto resolutions or ordinances of the Council. A recent case involving a discussion of the veto power of a mayor is The Raven, Inc v City of Southfield, 69 Mich App 696; 245 NW2d 370, rev, 399 Mich 853 (1977). The issue was whether a mayor, whose veto authority was almost identical to that contained in the Westland Charter, may veto the council approval of a liquor license. The Supreme Court reversed the Court of Appeals and held that the Mayor could not veto the City Council's approval of the license for the reasons stated by Chief Judge Danhof, in his dissenting opinion: 'It is axiomatic in the law that where statutory language is plain, certain and unambiguous, such language is not subject to construction by the courts. Nothing could be plainer than the term 'legislative body,' as employed in this context. To what purpose would the state Legislature add the modifier 'legislative' if they intended that the local executive should join in the approval process? The Legislature could have chosen to employ terms such as 'local unit of government' or 'local legislative body and executive', but did not do so. The term 'legislative body' has only one plain meaning and we are bound by that meaning.' 69 Mich App 696, 702-704; 245 NW2d 370, 373 (1976) The distinguishing factor between The Raven, Inc v City of Southfield, supra, and the instant matter is that the Raven case dealt with the authority of the Mayor to veto an action of the City Council which had been specifically delegated to the Council by the Legislature. OAG, 1977-1978, No 5354, p 564 (August 4, 1978), which involved the same factual situation as did The Raven, Inc, supra, ruled that the Mayor of the City of Taylor did not have the authority to veto action of the Taylor City Council appointing a member of the governing board of the People's Community Hospital Authority. The authority to appoint members to said board was pursuant to 1945 PA 47, as amended, MCLA 331.1 et seq; MSA 5.2456(1) et seq, which provided that members were to be appointed by the local legislative bodies. The opinion relied upon the court's decision in Raven v City of Southfield, supra, in that the authority to appoint members to the board was specifically governed by state statute which provided that such appointments were to be accomplished by the local legislative body. In point is People, ex rel Kehoe v Fitchie, 76 Hun 80; 28 NYS 600 (Sup Ct, App Div 1894) where the court considered whether a mayor may veto an appointment made by resolution by the common council to fill a vacancy in the office of a supervisor. The court held that the power to fill, by resolution, vacancies in the office of supervisor was not legislative, but executive, and subject to the authority of the mayor to veto appointments made by resolutions. Thus, in situations where the Legislature has specifically indicated its intent that the appointing authority or licensing authority is vested in the local legislative body, pursuant to a state enactment, the veto power of the mayor, derived from the charter, must give way to the statute, namely section 36 of the Michigan home rule cities act, 1909 PA 279, Sec. 36; MCLA 117.36; MSA 5.2116. However, in the instant situation, the Legislature has, through 1923 PA 199, Sec. 7, supra, and in the absence of any contravening statute, indicated its intent that the filling of vacancies in city elective offices is subject to the terms of the city charters involved. The Westland Charter provides that the City Council shall fill vacancies and that all actions of the City Council are to be accomplished through ordinance or resolution. The Westland Charter further provides that the Mayor has veto power over all resolutions and ordinances passed by the City Council. The language of the charter is clear and unambiguous and must be given its plain meaning. It is my opinion, therefore, that the Mayor of the City of Westland may veto a resolution adopted by the City Council making an appointment to fill a vacancy in an elected city office. Frank J. Kelley Attorney General
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