STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6257

November 21, 1984

GOVERNOR:

Authority to fill vacancy in appointive state office with fixed term

RACES AND RACING LAW:

Term of office of present racing commissioner

The term of office of the present racing commissioner expires December 31, 1984.

Honorable James J. Blanchard

Governor

The Capitol

Lansing, Michigan

You have requested my opinion regarding the expiration date of the term of office of Racing Commissioner William S. Ballenger.

On September 24, 1982, Governor Milliken appointed Mr. Ballenger to the office of racing commissioner to fill a vacancy caused by the death of Mr. Frederick S. Van Tiem. Mr. Ballenger filed his oath of office on the same day of his appointment. The executive order of appointment stated a term of office of four years, expiring September 23, 1986. 2 SJ 2336 (1982). A bare reading of the executive order making the appointment for a four-year term expiring on September 23, 1986 does not suffice as the answer to your question since the controlling statutes fixing the authority of the Governor to make an appointment for such term must be examined and applied.

At the time of the appointment of the late Mr. Van Tiem to such office, the Racing Law of 1959, 1959 PA 27, Sec. 3, in pertinent part, provided:

The Legislature enacted the Racing Law of 1980, 1980 PA 327; MCLA 431.61 et seq; MSA 18.966(31) et seq, effective December 18, 1980. 1980 PA 327, supra, Sec. 28, repealed 1959 PA 27. In pertinent part, 1980 PA 327, supra, Sec. 3(1) states:

The primary rule of statutory construction is to ascertain and give effect to the intent of the Legislature. Spartan Asphalt Paving Co v Grand Ledge Mobile Home Park, 400 Mich 184, 187; 253 NW2d 646, 648, reh den, 400 Mich 1029 (1977). Where a statute is plain in its terms, a common sense reading of the statute suffices. Karl v Bryant Air Conditioning Co, 416 Mich 558, 567; 331 NW2d 456, 461 (1982). Such a reading of 1980 PA 327, Sec. 3(1), supra, reveals that the racing commissioner shall be appointed by the Governor by and with the consent of the Senate for a four-year term. The authority of the Legislature to fix the term of four years for such statutory office is not open to question. Attorney General, ex rel Dust v Oakman, 126 Mich 717, 720; 86 NW 151, 152 (1901). The Legislature also provided that the term of the racing commissioner appointed by the Governor by and with the advice and consent of the Senate under 1959 PA 27 serving on the effective date of 1980 PA 327, supra, would expire on December 31, 1984.

Mr. Frederick S. Van Tiem was appointed to the office of racing commissioner on October 13, 1980 for a term of office at the pleasure of the Governor to commence on November 17, 1980. 2 SJ 2710 (1980). Mr. Van Tiem filed his oath of office on October 17, 1980. The message to the Senate containing notice of the appointment stated that the appointment was made subject to the advice and consent of the Senate. The records of the Department of Agriculture, in which the office of racing commissioner was transferred by a Type I transfer by 1965 PA 380, Sec. 184; MCLA 16.284; MSA 3.29(184), indicate that Racing Commissioner Van Tiem was paid a state salary for that office commencing November 17, 1980 through August 12, 1982, the date of his death. Thus, Racing Commissioner Van Tiem was serving in that office on December 18, 1980, the effective date of 1980 PA 327, supra.

Although the full 60-session day period for disapproval by the Senate in the exercise of its advice and consent authority to the Van Tiem appointment pursuant to Const 1963, art 5, Sec. 6 had not expired, Mr. Van Tiem assumed his office on November 17, 1980 and was the lawful occupant of that office on December 18, 1980. OAG, 1965-1966 No 4531, p 393, 411 (December 27, 1966), construed Const 1963, art 5, Sec. 6 to permit a person appointed to a state office subject to advice and consent of the Senate to enter immediately upon his or her duties of the office upon taking the requisite oath. It follows that Racing Commissioner Van Tiem was serving in that office on December 18, 1980. OAG, 1983-1984, No 6120, p 7 (January 13, 1983).

By operation of law, the term of Racing Commissioner Van Tiem became a fixed term on December 18, 1980, with an expiration date of December 31, 1984.

Upon the death of Racing Commissioner Van Tiem, a vacancy was created in such office. The manner of filling vacancies in state elective and appointive offices is prescribed by 1923 PA 199, Sec. 1, MCLA 201.31; MSA 6.711, which provides:

The appointed position of racing commissioner is created by statute. As such, the racing commissioner is a public officer of the state. People v Freedland, 308 Mich 449; 14 NW2d 62 (1944); People v Leve, 309 Mich 557; 16 NW2d 72 (1944). Thus, 1923 PA 199, Sec. 1, supra, applies when a vacancy occurs in the office of racing commissioner. When a vacancy in such office occurs, the Governor, pursuant to legislative mandate, 'shall fill the vacancy by appointment for the remainder of the unexpired term of such office.'

It is noted that when the word 'shall' is used in a command to a public official, it excludes the idea of discretion. People v De La Mater, 213 Mich 167, 171; 182 NW 59 (1921); Ladies of the Maccabees v Comm'r of Ins, 235 Mich 459, 465; 209 NW 581 (1926).

While the appointment of Racing Commissioner William S. Ballenger recited that it was for a term expiring September 23, 1986, the authority of the Governor to fill the vacancy with an unexpired term was limited by 1923 PA 199, Sec. 1, supra, to the appointment for the unexpired term of such office, which was December 31, 1984. As the individual appointed by the Governor to fill the vacancy in the office of racing commissioner resulting from the death of Mr. Van Tiem, Mr. Ballenger may only serve for the remainder of the unexpired term of his predecessor.

It is my opinion, therefore, that Racing Commissioner William S. Ballenger's present term as racing commissioner expires December 31, 1984.

Frank J. Kelley