STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6278

March 14, 1985

TOWNSHIPS:

Expenditure of general fund moneys to repair privately owned and controlled dikes located on private land

A township is not authorized by law to expend general fund moneys for the repair of privately owned and controlled dikes located on private land.

Honorable Lewis N. Dodak

State Representative

The Capitol

Lansing, Michigan 48909

You have requested my opinion on the question of whether a township may expend general fund moneys of the township for the repair of privately owned and controlled dikes located on private property (other than through the Local River Management Act) when such projects would be considered to protect the health, welfare and safety of township residents.

The following has been ascertained in relation to your question. Certain dikes were built well into the past on private property in several townships abutting a river. These dikes offered a measure of flood control to the property on which they were built and surrounding property. Recently these dikes failed. The landowners, on a private venture basis, made necessary repairs or replacements and paid for the improvements themselves and with a self-assessment of other benefitted properties. Certain of these self-assessments have not been paid and the townships involved have expressed a willingness to pay part of the cost if they may legally do so. There is, however, no public involvement of any of the townships or county involved.

As municipal corporations, townships may exercise only such powers as have been conferred upon them by law. Hanslovsky v Twp of Leland, 281 Mich 652, 655; 275 NW 720 (1937); Twp of Dearborn v Dearborn Twp Clerk, 334 Mich 673, 685; 55 NW2d 201 (1952); OAG, 1939-1940, p 73 (March 28, 1939). Townships may not raise or expend money for any purpose not authorized by law. People v Twp Bd of Woodhull, 14 Mich 28 (1865); Mills v Twp of Richmond, 72 Mich 100; 40 NW 183 (1888).

There is authority for flood control projects at the township level other than the Local River Management Act, MCL 323.301 et seq; MSA 11.431 et seq, which relates to creation of a watershed council and river management. A list of such statutes includes the flood, drainage and beach erosion control act, MCL 281.621 et seq; MSA 13.1821 et seq, and the township public improvement act.

A review of such statutes discloses no authority for the expenditure of public moneys under the factual situation outlined above. For instance, MCL 281.621 et seq; MSA 13.1821 et seq, authorizes the township board to contract with the federal government, or any agency thereof, and to acquire interests in lands, with respect to flood control. A township board is authorized by MCL 281.624; MSA 13.1824, to make expenditures in connection with any such contract with the federal government.

Further, under MCL 41.722(1)(h); MSA 5.2770(52)(1)(h), a township is authorized to make improvements, including '[t]he construction, maintenance, repair, or improvement of erosion control structures or dikes,' in accordance with the procedures set forth therein. However, the only provision for payment out of the township improvement revolving fund is as an advance against special assessments as authorized by MCL 41.735a; MSA 5.2770(65a).

It is also noted that MCL 123.742; MSA 5.570(12), authorizes a township to contract with the county for the installation of lake improvements and erosion control systems, and for payment by a township through, inter alia, the general fund and special assessments. However, this would necessitate county involvement in the improvements.

It is my opinion, therefore, that, a township is not authorized by law to expend general fund moneys for the repair of privately owned and controlled dikes located on private land.

Frank J. Kelley

Attorney General