STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6412

December 26, 1986

CONSTITUTIONAL LAW:

Const 1963, art 5, Sec. 5--composition of board regulating mechanical contractors

MECHANICAL CONTRACTORS:

Composition of Board of Mechanical Rules

Each person appointed to serve on the Board of Mechanical Rules as a representative of the eight work classifications set forth in MCL 338.976(3); MSA 18.868(6)(3), must be licensed as a mechanical contractor in the particular classification he or she is to represent.

Elizabeth P. Howe

Director

Michigan Department of Labor

7150 Harris Drive

P.O. Box 30015

Lansing, Michigan 48909

You have requested my opinion regarding the composition of the Board of Mechanical Rules as established by the Forbes Mechanical Contractors Act, MCL 338.971 et seq; MSA 18.86(1) et seq. Your question may be stated as follows:

MCL 338.973(1); MSA 18.86(3)(1), creates the Board of Mechanical Rules (Board) and establishes the composition of its members, providing, in pertinent part:

Accordingly, this section requires that the appointed members include "a representative from each of the work classifications set forth in section 6(3)." The latter section, MCL 338.976(3); MSA 18.86(6)(3), provides:

As is clearly demonstrated by the underscored language in MCL 338.976(3); MSA 18.86(6)(3), above, the work classifications set forth in that section plainly and expressly describe classifications of contractors licensed under the Act. It follows, therefore, that each individual appointed to serve on the Board as a representative from one of these work classifications, pursuant to section 3(1), must be a person who has been licensed as a contractor in the particular work classification he or she is to represent.

This construction of the statute is consistent with the language of MCL 338.976(3); MSA 18.86(6)(3), mandating that appointed members of the board must be "qualified in their respective fields." More importantly, it is mandated by Const 1963, art 5, Sec. 5, which provides:

The purpose of Const 1963, art 5, Sec. 5, was examined in Nemer v Michigan State Board of Registration for Architects, Professional Engineers & Land Surveyors, 20 Mich App 429, 433; 174 NW2d 293 (1969):

The word "profession" as used in Const 1963, art 5, Sec. 5, includes not only boards which license "professionals," but also boards which license "occupations" such as mechanical contractors. OAG, 1975-1976, No 4899, p 181 (October 23, 1975).

While the examination for licensure as a mechanical contractor is conducted by and the license is issued by the Department of Labor (Department), MCL 338.976(1); MSA 18.86(6)(1), the Department and the Board, acting jointly, review and approve the form and content of the examination. MCL 338.975(2); MSA 18.86(5)(2). Further, the Legislature has empowered the Board to revoke or suspend licenses of mechanical contractors as provided in MCL 338.981; MSA 18.86(11). It must be concluded that the authority to judge and regulate mechanical contractors has been vested by the Legislature in the Board of Mechanical Rules.

Thus, in order to comply with the constitutional mandate imposed by Const 1963, art 5, Sec. 5, at least eight members of the Board of Mechanical Rules must be licensed mechanical contractors. Because MCL 338.973(1); MSA 18.86(3)(1), specifically requires that seven board members, i.e., those other than the eight representatives from the work classifications set forth in section 6(3), are to be selected from various groups other than licensed contractors, the statute can be found to comply with Const 1963, art 5, Sec. 5, only if it is construed as requiring that the eight work classification representatives must be licensed mechanical contractors.

It is a well-established principle of statutory construction that the language of an act must be construed, if possible, so as to avoid any conflict with the provisions of the Constitution. McQuaid v Oakland County Board of County Auditors, 315 Mich 234, 242-243; 23 NW2d 644 (1946). Where the statute is susceptible to more than one interpretation, one of which would render the statute unconstitutional, the courts will generally adopt the interpretation which will render the statute constitutional and, thus, preserve its validity. State Bar of Michigan v City of Lansing, 361 Mich 185, 195; 105 NW2d 131 (1960); Pigorsh v Fahner, 386 Mich 508, 514; 194 NW2d 343 (1972).

It is my opinion, therefore, that each person appointed, pursuant to MCL 338.973(1); MSA 18.86(3)(1), to serve on the Board of Mechanical Rules as a representative of one of the eight work classifications set forth in MCL 338.976(3); MSA 18.868(6)(3), must be licensed as a mechanical contractor in the particular work classification he or she is to represent.

Frank J. Kelley

Attorney General