STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6187

October 3, 1983

CORRECTIONS, DEPARTMENT OF:

Commission of Corrections--number of members, term and eligibility for appointment to office of member

The Commission of Corrections is composed of five members to be appointed by the Governor by and with the advice and consent of the Senate for a term of four years as required by 1965 PA 380, Sec. 278.

A person seeking appointment to the office of member of the Commission of Corrections must meet the eligibility requirements contained in 1953 PA 232, Sec. 1.

Honorable Jeffrey D. Padden

State Representative

The Capitol

Lansing, Michigan

You have requested my opinion on the following questions:

1953 PA 232, Sec. 1; MCLA 791.201; MSA 28.2271, as originally enacted, provided:

The Legislature implemented Const 1963, art 5, Sec. 2 requiring the allocation of state executive agencies into not more than twenty departments by enactment of the Executive Organization Act, 1965 PA 380; MCLA 16.101 et seq; MSA 3.29(1) et seq. 1965 PA 380, supra, Sec. 275, created the Department of Corrections; 1965 PA 380, supra, Sec. 276 provided that such department be headed by the Commission of Corrections.

1965 PA 380, supra, Sec. 278 provides:

The obvious conflict between 1953 PA 232, Sec. 1, supra, and 1965 PA 380, Sec. 278, supra, as to the number of members composing the Commission of Corrections and the term of office of such members was considered in OAG, 1965-1966, No 4485, p 174 (November 5, 1965). The opinion found the two statutory provisions to be irreconcilable and concluded that 1965 PA 380, Sec. 278, supra, the later enactment, repealed by implication the conflicting provisions contained in 1953 PA 232, Sec. 1, supra, so that the Commission of Corrections is composed of five members appointed by the Governor by and with the advice and consent of the Senate for four year terms.

In 1975, the Legislature amended 1953 PA 232, Sec. 1, supra, by means of 1975 PA 59 to deal with the compensation of members of the Commission of Corrections so as to remove the $25.00 per diem compensation and to provide that the per diem compensation and expense allowances shall be established annually by the Legislature. In order to comply with Const 1963, art 4, Sec. 25 that the section to be amended shall be reenacted and published at length, Burton v Koch, 184 Mich 250; 151 NW 48 (1915), amendatory 1975 PA 59 retained the statutory language that the Commission of Corrections shall be composed of six members appointed to terms of six years.

It is abundantly clear that the evident and sole purpose of the Legislature in the enactment of amendatory 1975 PA 59 was to deal with the compensation and expenses of members of the Commission of Corrections. It was not concerned with the number of members composing the Commission or the length of term of the member. The Legislature did not give life to 1953 PA 232, Sec. 1 (second and fourth sentences), supra, the provision relating to number of members and length of term repealed by implication, merely by reciting it. Washington v Sam, 85 Wash 2d 713; 538 P2d 1209 (1975). The retention of this provision in 1965 PA 380, Sec. 278, supra, may be attributed to inadvertance or oversight. Los Angeles v Lelande, 11 CA 302, 104 P 717, reh den (1909).

The matter at hand is not unlike that considered in OAG, 1979-1980, No 5787, p 978 (September 9, 1980), where the Legislature enacted 1978 PA 223 so as to amend 1921 PA 17, Sec. 1; MCLA 299.1; MSA 13.3, to make the Commission on Conservation subject to the requirements of the Open Meetings Act, 1976 PA 267; MCLA 15.261 et seq; MSA 4.1800(11) et seq. In so amending 1921 PA 17, Sec. 1, supra, the Legislature complied with Const 1963, art 4, Sec. 25 by re-enacting section 1, including the requirement that two of the members of the Commission be residents of the Upper Peninsula, a requirement which was repealed by implication by 1965 PA 380, Sec. 254; MCLA 16.354; MSA 3.29(254). OAG, 1965-1966, No 4485, supra. OAG, 1979-1980, No 5787, supra, concluded that the Legislature, by enacting 1978 PA 223, did not intend to re-enact the requirement that two members of the Commission be residents of the Upper Peninsula.

It is my opinion, in answer to your first two questions, that the Commission of Corrections is composed of five members to be appointed by the Governor by and with the advice and consent of the Senate for a term of four years as required by 1965 PA 380, Sec. 278, supra.

Responding to your third question, a fair reading of 1953 PA 232, Sec. 1, (third sentence), supra, the eligibility sentence, and the provisions contained in 1965 PA 380, Sec. 278, supra, the membership and term section, reveals no conflict between these statutory provisions. Thus, there is no basis to conclude that the eligibility provisions of 1953 PA 232, Sec. 1, supra, were repealed by implication. It must follow that the eligibility provisions of 1953 PA 232, Sec. 1, supra, remain in full force and effect.

In answer to your third question, it is my opinion that the eligibility provisions for appointment as a member of the Commission of Corrections set forth in 1953 PA 232, Sec. 1, supra, remain in full force and effect.

Frank J. Kelley