Opinion #6688

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. 6688

July 31, 1991

Combining office with county clerk

COUNTY CLERK:

Combining office with register of deeds

A county board of commissioners may not combine the office of register of deeds and the office of county clerk effective prior to the end of the terms of those offices under Const 1963, art 7, Sec. 4.

Honorable James Mick Middaugh

State Representative

The Capitol

Lansing, MI 48909

Honorable Roland Niederstadt

State Representative

The Capitol

Lansing, MI 48909

You have asked whether a county board of commissioners may combine the office of register of deeds and the office of county clerk effective prior to the end of the terms of those offices.

You advise that the Oscoda County Register of Deeds retired on January 31, 1991 and that the board voted to combine the offices effective February 1, 1991. Specifically, you question the validity of that action when the offices are combined in midterm.

The Michigan Constitution is specific both as to the terms of county elected officers and the ability to combine offices. Const 1963, art 7, Sec. 4, provides:

There shall be elected for four-year terms in each organized county a sheriff, a county clerk, a county treasurer, a register of deeds and a prosecuting attorney, whose duties and powers shall be provided by law. The board of supervisors in any county may combine the offices of county clerk and register of deeds in one office or separate the same at pleasure.

Provisions of Const 1963, art 7, Sec. 4, are substantially the same as those found in Const 1908, art 8, Sec. 3, except that the term of elected county officers was extended from two years to four years. The provisions of the 1908 Constitution had already been authoritatively construed in MacDonald v. DeWaele, 263 Mich 233, 236-237; 248 NW 605 (1933):

The qualified voters of the county elected the plaintiff county clerk and the defendant register of deeds. Their term of office is fixed by the Constitution at two years. Their duties are in no way intermingled. When united, the person elected shall become county clerk and register of deeds, and as such may perform any duty imposed by law upon either official. By the action taken, the board in effect appointed the plaintiff to fill an elective office, that of register of deeds of the county. No power to do so was expressly vested in it by the constitutional provision.

It seems clear to us that this provision should be construed as conferring upon the board of supervisors the power to at any time unite these offices or separate them, but such action on its part may not become effective until the next election, at which, in case the offices have been united, one person would be elected to the office of county clerk and register of deeds, and, in case of separation, one person would be elected to each of such offices. [Emphasis added.]

See, also, OAG, 1939-1940, p 286 (October 25, 1939), and OAG, 1947-1948, No 0-4968, p 39 (August 19, 1946).

Presumably the delegates to the Constitutional Convention in 1961 were aware of this construction. There is nothing to indicate that the delegates to the 1961 Convention intended other than to incorporate the construction found in MacDonald. A provision carried into the present Constitution from an earlier Constitution is subject to the construction previously given such language by the Supreme Court. White v City of Ann Arbor, 406 Mich 554, 566-567; 281 NW2d 283 (1979), and Richardson v Secretary of State, 381 Mich 304, 311-312; 160 NW2d 883 (1968).

It is my opinion, therefore, that a county board of commissioners may not combine the office of register of deeds and the office of county clerk effective prior to the end of the terms of those offices under Const 1963, art 7, Sec. 4. The vacancy in the office of register of deeds shall be filled by appointment by the presiding or senior probate judge, the county clerk and the prosecuting attorney under MCL 168.209(2); MSA 6.1209(2).

Frank J. Kelley

Attorney General