STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6226

May 18, 1984

DRAINS AND DRAINAGE:

Maintenance and repair of county drain subject to approval of affected municipal corporations

County drain commissioner--authority to maintain and repair county drain subject to approval of affected municipal corporations

The $800.00 limitation contained in 1956 PA 40, Sec. 196, upon the authority of a county drain commissioner to maintain and repair a county drain without approval of the affected municipal corporation or municipal corporations should be calculated by the number of miles of the drain in need of maintenance or repair.

Before maintenance and repair of a county drain may be undertaken by the county drain commissioner, the prior approval of the governing body of a township, city or village affected by more than 20% of the cost of maintaining and repairing the drain traversing the township, city or village must be secured if the cost of the maintenance or repair in any one year exceeds $800.00 per mile of the drain in need of maintenance and repair, or 2% of the original cost of the drain and 2% of extensions thereof.

Mr. Conrad Sindt

Calhoun County Prosecutor

190 East Michigan Avenue

Battle Creek, Michigan 49017

You have requested my interpretation of the Drain Code of 1956, 1956 PA 40; MCLA 280.1 et seq; MSA 11.1001 et seq, Sec. 196, with regard to the limitations upon the expenditures to be made by the drain commissioner. 1956 PA 40, supra, Sec. 196, as amended by 1982 PA 523, provides, in pertinent part:

You have requested my opinion on three questions, the first of which may be stated as follows:

The object and purpose of 1956 PA 40, Sec. 196, supra, is to authorize a drain commissioner to expend funds for the maintenance and repair of an intracounty drain, subject to the limitations on the amount of such expenditures as are expressed in the statute. Section 196(1), supra, contemplates an inspection, and when the inspection discloses the necessity of expending funds for maintenance and repair, the drain commissioner is authorized to expend funds for necessary maintenance and repair not in excess of $800 per mile or fraction thereof and not in excess of 2% of the original cost of the drain and 2% of extensions. The $800 per mile limit pertains to miles necessarily in need of maintenance or repair, as determined by the drain commissioner in the case of a county drain, or the drainage board in the case intercounty drains. The statute makes repeated use of the words 'necessity' and 'necessary' in connection with the cost of maintenance and repair. An application of the dollar limitation to the entire length of the drain, without regard to the extent of necessary maintenance and repairs, is not consistent with the expressed intention of section 196, supra, because the dollar limitation would be applied to mileage in which no maintenance or repair was necessary; the cost would bear no relationship to the object and purpose of the statute.

The interpretation that the $800 figure applies to miles of the drain actually needing repair is supported not only by a literal reading of the existing language, by also by the legislative history of section 196, supra, as well. When the Drain Code of 1956, supra, was enacted, 1956 PA 40, Sec. 196, supra, provided for a flat rate of $800, with no provision pertaining to mileage and no provisions pertaining to a percentage of cost: ⁽³⁾

Thus, the $800 limitation, in 1956 PA 40, Sec. 196, supra, as originally enacted, pertained to an entire drain without regard to its length, cost, or number of miles needing repair. When 1956 PA 40, Sec. 196, supra, was amended by 1959 PA 70, the limit was changed from the overall flat rate of $800 to $300 per mile or fraction thereof or 1% of original cost and 1% of extension cost. In 1959 PA 70, supra, the percentage limitation pertained to the whole, and the dollar per mile limitation pertained to parts of the whole, thereby relating the per mile cost to miles actually in need of repair. In effect, the Legislature introduced a dual formula for determining maximum expenditures, in lieu of the prior singular formula. If the dollar per mile figure was applied to the entire drain, the dollar figure would be a duplication of the percentage figure and surplusage, with no meaning or application given to miles actually in need of repair; the latter would be rendered nugatory by such interpretation.

Section 196, supra, was again amended by 1960 PA 96, increasing the per mile amount from $300 to $500. Also, the section was amended by 1972 PA 270, increasing the per mile amount to $800 and the percentage to 2%. ⁽⁴⁾

The untenability of applying the per mile dollar amount to total miles of the entire drain is further illustrated by the statutory change from the language of 1956 PA 40, Sec. 196, supra, as a result of the amendment to that section made by 1959 PA 70. If the dollar per mile limit was applied to the entire drain, the result would be absurd; the allowable amount for a one mile drain in need of repair would have been reduced from $800 to $300, whereas a ten mile drain needing only one mile of repair would have increased in amount from $800 to $3,000.

It is my opinion, therefore, that the $800 limitation on expenditures, in 1956 PA 40, Sec. 196, supra, should be calculated by the number of miles of a drain in need of maintenance or repair, and not by the number of miles of the entire length of the drain without regard to the actual part of the drain in need of repair.

Your second question may be stated as follows:

The provision of 1956 PA 40, Sec. 196, as amended by 1982 PA 523, supra, which is pertinent to your second question, provides:

It is clear from this statutory language that a drain commissioner is authorized to expend for maintenance and repair not to exceed $800 per mile or fraction thereof (as above discussed) or 2% of original cost and 2% of the cost of extensions, and the drain commissioner may do so without the approval of the municipalities affected. When the $800 or the 2% and 2% limitations are exceeded, the statute requires the approval of such local governments as are affected by more than 20% of the cost; approval is not necessary of a local unit which is not affected by more than 20% of the cost.

The 20% figure was placed in section 196, supra, by 1976 PA 344. Prior to that amendment (see 1972 PA 270), section 196 provided that additional amounts could not be expended until approved by not less than 50% of the total number of legislative bodies of all such public corporations within, or partly within, the drainage district. Formerly, a drain commissioner was authorized to expend additional funds in excess of the $800/2%/2% with the approval of a majority of affected municipalities, but without the approval of each of the affected municipalities which might be impacted by a substantial amount of the excess cost.

It is my opinion, therefore, that the maximum expenditure of $800/2%/2% may be exceeded without the approval of each affected municipality, provided that such municipality is not affected by more than 20% of the cost.

The third question may be stated as follows:

The above-quoted provision of 1956 PA 40, Sec. 196, supra, refers to 'each city, village or township affected by more than 20% of the cost.' [Emphasis added.]

Before considering what shall be included within the 20%, it should be first determined to what total cost the 20% should be applied because the 20% factor may vary when the whole is differently defined or described. For example, if the total cost of repair is spread across the entire length of the drain, that entire length may traverse several municipalities, and the proportionate percentage of cost to each municipality would be a smaller percentage of the whole. However, when the total cost is spread across only the miles of drain actually in need of repair, the percentage of total cost may be higher in a given municipality because fewer municipalities are involved.

Having determined, in answer to question one above, that repair costs should be based upon miles actually repaired, and not upon the entire length of a drain, it follows that the total repair costs should be similarly determined. Such a conclusion is consistent with the intention of section 196, supra, that approval should be obtained from municipalities affected by more than 20% of the cost. When miles of a drain needing repair do not traverse a municipality, that municipality is not affected by the costs of such repair.

Turning to the third question, the cost of maintenance and repair of a drain will affect not only the government or administration of a municipality, but it will also affect the assessed property owners in the drainage district of that municipality. This is apparent from the provisions of 1956 PA 40, supra, requiring notice to all freeholders subject to assessment of costs in excess of the $800/2%/2% limitation. In the precise language of section 196, subsection (1), the approval of the governing body must be obtained when that 'city, village or township' is affected by more than 20% of cost. Compare, section 196, subsection (3), which authorizes a drain commissioner to exceed the $800/2%/2% limitation when the maintenance and repair is requested by a 'public corporation' and the 'public corporation' pays the entire cost of the maintenance and repair. The words 'public corporation' in section 196, subsection (3), are used in distinction from the words 'city, village or township' as they appear in section 196, subsection (1). Inasmuch as the words 'public corporation' are not used in section 196, subsection (1), in connection with the 20% factor, it follows that it was not the Legislature's intention to confine the 20% factor to the public corporation as it had done in subsection (3). The use of the words 'city, village or township' in subsection (1) indicates the Legislature's broad intention with respect to the 20% factor, rather than the narrower intention reflected at subsection (3). Thus, the exclusion of assessed freeholders from among those affected by cost would be to ignore the express distinction drawn by the Legislature in the statutory language.

It is my opinion, therefore, that the 20% of cost factor is applicable not only to the municipality (the public corporation), but it is also applicable to the assessed property owners in the same municipality who are affected by the cost.

Frank J. Kelley