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. 6726

August 7, 1992

COUNTIES:

Combining offices of clerk and register of deeds

A county board of commissioners, with terms of office which expire on January 1, 1993, may pass an enforceable resolution to unite the county offices of clerk and register of deeds to be effective in the November, 1996, election.

Honorable John D. Pridnia

State Senator

The Capitol

Lansing, MI

You ask whether a county board of commissioners, with terms of office which expire on January 1, 1993, may pass an enforceable resolution to unite the county offices of clerk and register of deeds to be effective in the November, 1996, election.

You advise that the Leelanau County Board of Commissioners, on April 21, 1992, passed Resolution 92-06, combining the offices of county clerk and register of deeds. The resolution provides that the action is to be effective in the November, 1996, election. The resolution further provides that the action is taken pursuant to the authority conferred in Const1963, art 7, Sec. 4, for the reason that such a combination of offices "would be economically and administratively advantageous to the County."

Const1963, 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. [ Emphasis added.]

The provisions of Const1963, art 7, Sec. 4, are substantially the same as those found in its predecessor provision, Const1908, art 8, Sec. 3, except that the term of elected county officers was extended from two years to four years. Const1908, art 8, Sec. 3, was construed in MacDonald v DeWaele, 263 Mich 233; 248 NW 605 (1933). In MacDonald, supra, the county board of supervisors attempted to combine the county offices of clerk and register of deeds during the terms of the two elected incumbents. The MacDonald court rejected the attempt, holding instead that, although the board of supervisors could vote at any time to combine the offices, the action could only take effect when it was time to fill the offices or combined office at a subsequent election:

The office of register of deeds is, however, a constitutional one, and no power is conferred upon the board of supervisors to abolish it. They may unite it with the office of county clerk or separate such offices at pleasure. We do not think any special significance attaches to the words "at pleasure." They simply mean that the board at any time when it is lawfully assembled may so act, in the exercise of a wise discretion on its part, having in view the purpose of the constitutional provision. [ Emphasis added.] [Citation omitted.]

 

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.]

MacDonald, supra, 263 Mich at 236-237.

OAG, 1991-1992, No 6688, p 62, ___, (July 31, 1991), considered the relationship between MacDonald, supra, and Const1963, art 7, Sec. 4, and concluded:

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).

Pursuant to MacDonald, supra, a county board of commissioners may vote, at any time, to combine the county offices of clerk and register of deeds. The only limitation is that the combining of offices may not become effective until it is time for a subsequent election to fill the offices or combined office.

It is my opinion, therefore, that a county board of commissioners, with terms of office which expire on January 1, 1993, may pass an enforceable resolution to unite the county offices of clerk and register of deeds to be effective in the November, 1996, election.

Frank J. Kelley

Attorney General