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The following opinion is presented on-line for informational use only and does not replace the official version. (Mich Dept of Attorney General Web Site - www.ag.state.mi.us)



STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


Opinion No. 6575

March 7, 1989

HOME RULE CITIES:

Publication by reference of ordinance adopting provisions of state act

A home rule city may adopt an ordinance incorporating a state act by reference without publication of the entire act where the ordinance otherwise complies with the requirements of MCL 117.3(k); MSA 5.2073(k), or where the Legislature has delegated to home rule cities the power to do so by law.

Honorable Rudy J. Nichols

State Senator

The Capitol

Lansing, MI 48909

You have requested my opinion on the following question:

May a home rule city adopt a state act into local ordinance by reference without publication of the entire act?

Cities are authorized by Const 1963, art 7, Sec. 22, to adopt ordinances relating to their local or municipal concerns, property and government subject to the Constitution and law. The home rule cities act, 1909 PA 279, Sec. 4j(3), MCL 117.4j(3); MSA 5.2083(3), similarly permits a city to provide in its charter for the ability to enact such ordinances.

In addition, the home rule cities act, Sec. 3(k), MCL 117.3(k); MSA 5.2073(k), requires a city to provide in its charter:

"For adopting, continuing, amending, and repealing the city ordinances and for the publication of each ordinance before it becomes operative. Whether or not provided in its charter, a city may adopt a law, code, or rules which have been promulgated and adopted by an authorized agency of the state pertaining to fire, fire hazards, fire prevention, or fire waste, and a fire prevention code, plumbing code, heating code, electrical code, building code, refrigeration machinery code, piping code, boiler code, boiler operation code, elevator machinery code, or a code pertaining to flammable liquids and gases, as well as to hazardous chemicals, which have been promulgated by this state, or by a department, board, or other agency of this state, or by an organization or association which is organized and conducted for the purpose of developing the code, by reference to the code in an adopting ordinance and without publishing the code in full. The code shall be clearly identified in the ordinance and its purpose shall be published with the adopting ordinance. Printed copies of the code shall be kept in the office of the city clerk, available for inspection by, and distribution to, the public at all times. The publication shall contain a notice stating that a complete copy of the code is made available to the public at the office of the city clerk in compliance with state law requiring that records of public bodies be made available to the general public." (Emphasis added.)

Thus, a home rule city exercising powers to adopt an ordinance relating to local or municipal concerns must publish each ordinance before it becomes operative. However, a city may adopt "a law, code, or rules," by reference, without publication in full, when the law, code, or rules meet the requirements and procedures set forth in MCL 117.3(k); MSA 5.2073(k).

It has long been recognized by judicial decision that the Legislature may delegate authority to cities to enact ordinances. In Dawley v Ingham Circuit Judge, 242 Mich 247, 249; 218 NW 766 (1928), it was stated:

"It is fundamental that the legislature has power to delegate to cities authority to enact such ordinances as are essential or incident to local governmental functions. The permissive power granted by the statute was not an amendment of the charter, neither did it require adoption by charter amendment to authorize enactment of the ordinance."

In Dawley, the court concluded, in part, that a city had the power under a statute authorizing zoning ordinances to enact the ordinance without amending the charter.

Other statutes of the state authorize the adoption of ordinances and establish criteria for adoption and publication. See, for example, Sec. 6 of the Revenue Bond Act of 1933, 1933 PA 94, MCL 141.101 et seq; MSA 5.2731 et seq, which establishes procedures for publication of a revenue bond ordinance. See also, the uniform traffic code for municipalities act, 1956 PA 62, MCL 257.951 et seq; MSA 9.2651 et seq, which authorizes a city to adopt, by reference, a code or ordinance for regulation of traffic within the city and provides for the manner of publication. In People v Tuttle, 104 Mich App 710; 305 NW2d 302 (1981), lv den sub nom City of Novi v Tuttle, 413 Mich 883 (1982), it was concluded that a city's publication of its traffic ordinance, which incorporated the state's uniform traffic code by reference, is valid where the city complies with the statutory publication requirements under the code.

It is my opinion, therefore, that a home rule city, acting in accordance with the provisions of the home rule cities act, may adopt an ordinance incorporating a state act by reference without publication of the entire act where the ordinance otherwise complies with the requirements of Sec. 3(k) of the home rule cities act or where the Legislature has delegated to home rule cities the power to do so by law.

Frank J. Kelley

Attorney General


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