STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6725

July 7, 1992

AGRICULTURE, DEPARTMENT OF:

Authority of agricultural commodity committees and commissions to borrow money

A commodity committee established under the Agricultural Commodities Marketing Act lacks the legal authority to borrow money.

The State Potato Industry Commission lacks the legal authority to borrow money.

The State Beef Industry Commission lacks the legal authority to borrow money.

The Michigan Bean Commission lacks the legal authority to borrow money.

Bill Schuette

Director

Department of Agriculture

North Ottawa Tower Building

Lansing, Michigan 48913

You have asked whether legislatively-established agricultural commodity committees and commissions have the legal authority to borrow money.

The Agricultural Commodities Marketing Act, 1965 PA 232, MCL 290.651 et seq; MSA 12.94(21) et seq, is the general enabling statute for many commodity committees. There are also specific statutes establishing the State Potato Industry Commission, 1970 PA 29, MCL 290.421 et seq; MSA 12.1244(51) et seq, the State Beef Industry Commission, 1972 PA 291, MCL 287.601 et seq; MSA 12.481(51) et seq, and the Michigan Bean Commission, 1965 PA 114, MCL 290.551 et seq; MSA 12.106(1) et seq.

Determining the extent of an administrative agency's powers requires an examination of its enabling statute. Union Carbide Corp v Public Service Comm, 431 Mich 135, 146; 428 NW2d 322 (1988). Generally, the "powers of a board created by statute are limited to those powers conferred expressly by statute or by necessary and fair implication of the statute and those powers should not be extended by implication beyond what is necessary." Comm of Ins v Accident Fund, 173 Mich App 566, 586; 434 NW2d 433 (1988), lv den, 433 Mich 872 (1989), citing Coffman v State Bd of Examiners In Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951). Further, in Union Carbide Corp v Public Service Comm, 431 Mich, at 151, our Supreme Court observed:

Also, there is the legal maxim of statutory construction "that [the] express mention of one thing implies the exclusion of other similar things." Marshall v Wabash R Co, 201 Mich 167, 172; 167 NW 19 (1918).

COMMODITY COMMITTEES ESTABLISHED UNDER THE AGRICULTURAL

COMMODITIES MARKETING ACT

Under section 3 of the Agricultural Commodities Marketing Act, marketing programs may be established for various agricultural commodities. Each marketing program is administered by a commodity committee appointed by the Governor with the advice and consent of the Senate pursuant to section 7 of the same statute.

Section 5 of the Agricultural Commodities Marketing Act provides, in pertinent part:

Sections 8 and 9 of the Agricultural Commodities Marketing Act provide, respectively, for the expenditure and refund of assessments collected from agricultural producers. Under section 14(a) of the same statute, the Director of the Department of Agriculture is required to "[i]nsure that the program is self-supporting."

A review of the provisions of the Agricultural Commodities Marketing Act demonstrates that the Legislature has expressly provided that each marketing program and commodity committee formed under that act must be financed by assessments on agricultural producers in an amount that covers all costs. There is no language in the Agricultural Commodities Marketing Act that expressly, or by necessary implication, authorizes a commodity committee to borrow money to finance the operation of its marketing program. Where the Legislature has expressly authorized the commodity committee to collect assessments from agricultural producers to finance its marketing program, this implies that the Legislature has not authorized a commodity committee to finance its marketing program by borrowing money. Marshall v Wabash R Co, supra.

It is my opinion, therefore, that a commodity committee established under the Agricultural Commodities Marketing Act lacks the legal authority to borrow money.

STATE POTATO INDUSTRY COMMISSION

In section 2 of 1970 PA 29 the Legislature created the State Potato Industry Commission within the Department of Agriculture. The powers of the Commission to promote the potato industry are set forth in section 3 of the same statute.

Section 4 of 1970 PA 29 authorizes the collection of an assessment on potato growers and shippers. Section 3(5) of 1970 PA 29 provides:

There is no express statutory authority in 1970 PA 29 authorizing the State Potato Industry Commission to borrow money. To the contrary, the Legislature has expressly provided for the levy of assessments on potato growers and shippers. The Legislature has also provided that all liabilities of the Commission may only be paid from funds collected under 1970 PA 29.

It is my opinion, therefore, that the State Potato Industry Commission lacks the legal authority to borrow money.

STATE BEEF INDUSTRY COMMISSION

The Legislature created the State Beef Industry Commission within the Department of Agriculture in section 3 of the Beef Industry Commission Act, 1972 PA 291. The powers of the Commission to promote the beef industry are contained in sections 4 and 5 of the same statute.

Section 6 of the Beef Industry Commission Act authorizes the collection of assessments on beef producers as follows:

In the Beef Industry Commission Act, there is no express statutory authority authorizing the Commission to borrow money. Rather, the Legislature has expressly provided for the levy of assessments on beef producers. In addition, the Legislature has expressly provided that the State Beef Industry Commission may use appropriated state funds, if any, or accept and expend money from outside sources. Where the Legislature has expressly authorized the Commission to use money from three different sources, without any reference to borrowing money, this implies that the Legislature has not authorized the State Beef Industry Commission to borrow money. Marshall v Wabash R Co, supra.

It is my opinion, therefore, that the State Beef Industry Commission lacks the legal authority to borrow money.

MICHIGAN BEAN COMMISSION

The Michigan Bean Commission was established pursuant to 1965 PA 114, supra. The powers of the Bean Commission under this act are, in many respects, quite similar to those accorded to the other commodity commissions discussed above. Sections 12 and 12a of 1965 PA 114, for example, expressly authorize the Bean Commission to impose assessments upon bean growers and the first receivers who purchase or receive beans from growers. Section 10 of the act then authorizes the Commission to expend these funds on such activities as scientific research as well as market research and development.

However, at section 8 of 1965 PA 114 the Legislature has provided:

The use of the term "body corporate" is of constitutional significance. In Const1963, art 9, Sec. 13, the People have provided that:

In furtherance of this provision, our Supreme Court has observed that "[p] ublic corporations, unlike the State, have general power to borrow money except as prohibited by the Constitution and by the statutes." Advisory Opinion Re Constitutionality of PA 1966, No 346, 380 Mich 554, 564; 158 NW2d 416 (1968). It is necessary, therefore, to examine 1965 PA 114 to determine whether the Legislature has acted to prohibit or limit the availability to the Bean Commission, as a body corporate, of the power to borrow.

Section 9 of 1965 PA 114 provides:

While section 10(d) of 1965 PA 114 authorizes the Michigan Bean Commission to "create liabilities, when reasonable, for the proper administration and enforcement of this act," section 9 of the act has expressly directed that all disbursements and liabilities of the Commission must be paid only from: (1) funds collected under 1965 PA 114 or (2) funds obtained through donations or (3) funds provided by governmental agencies. The express mention of these three specific sources of funds implies the exclusion of other sources including borrowed funds. Marshall v Washbash R Co, supra.

Thus, when these statutory sections are read as a whole, it is clear that since the Legislature intended the Bean Commission to fund its operations only through member assessments, donations or governmental appropriations, it concomitantly prohibited the Commission from borrowing funds which otherwise would have been a power authorized to the Commission pursuant to its designation as a "body corporate."

It is my opinion, therefore, that the Michigan Bean Commission lacks the legal authority to borrow money.

It should be emphasized that this conclusion is based on statutory language which, in this particular instance, must be read as restricting the constitutional authority, under Const1963, art 9, Sec. 13, of a public body corporate to borrow money. However, a review of Michigan statutes indicates that the terms "body corporate" or "public body corporate" appear in over 200 acts and in respect to all types of commissions, boards, authorities, districts, trusts, corporations and agencies. Given the constitutional significance of these terms, I would caution the Legislature that when enacting legislation, it should utilize such terms only with deliberate recognition that their use confers borrowing and debt authority on the public entity involved absent the enactment of statutory borrowing and debt restrictions applicable to the entity.

Frank J. Kelley

Attorney General