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. 6773

November 2, 1993

SECRETARY OF STATE:

Municipal boundary descriptions in documents filed with the Michigan Department of State

The Secretary of State is not required by statute to determine whether land descriptions concerning territories annexed or to be detached from municipalities are accurate before boundary documents may be filed.

The Secretary of State is not authorized by statute to require municipalities which file materials dealing with municipal boundaries to submit maps prepared by a registered surveyor.

Honorable Richard H. Austin

Secretary of State

Treasury Building

Lansing, MI

You have asked two questions concerning the accuracy of boundary descriptions in documents filed with the Michigan Department of State pursuant to various statutes which set forth procedures for incorporation, annexation, consolidation, detachment, or other boundary adjustments involving municipal corporations.

Your letter provides the following statement regarding the current procedures followed by the Secretary of State concerning the receipt for filing of boundary adjustment documents:

[V]arious documents concerning city boundaries and annexations (e.g., resolutions and orders) must be filed with the Secretary of State under sections 9 and 11 of [the home rule cities act] Act No. 279 of the Public Acts of 1909 (MCL 117.9 and MCL 117.11 [MSA 5.2088 and MSA 5.2090].) Also, similar documents must be filed by other types of municipality (sic) under related laws, such as: section 30 of [the conditional transfer of property act] Act No. 425 of the Public Acts of 1984 (MCL 124.30 [MSA 5.4087(30) ]), section 10 of [the state boundary commission act] Act No. 191 of the Public Acts of 1968 (MCL 123.1010 [MSA 5.2242(10) ]), section 34 of [the charter township act] Act No. 359 of the Public Acts of 1947 (MCL 42.34 [MSA 5.46(34) ]), section 9 of [the home rule village act] Act No. 278 of the Public Acts of 1909 (MCL 78.9 [MSA 5.1519 ]), and at least one section of Act No. 3 of [the general law village act] the Public Acts of 1895 (MCL 74.6 [MSA 5.1470]).

Sections 6 to 9 of [state trunk line system act] Act No. 51 of the Public Acts of 1951 (MCL 247.656 to 247.659 [MSA 9.1097(6) to 9.1097(9) ]), require the Michigan Department of Transportation ["MDOT"] to maintain a record of Michigan's system of major local streets. To facilitate that process, the Secretary of State has for many years forwarded annexation filings to MDOT for verification of accuracy prior to final acceptance by the Secretary of State. On occasion, MDOT has noted errors, and filings have been returned for correction. This process would be simplified if accurate filings were submitted in the first instance.

Your questions are:

1. Is the Secretary of State responsible for determining whether land descriptions concerning territories annexed to or detached from municipalities are accurate before boundary documents may be filed?

2. May the Secretary of State require municipalities which file materials under the above-cited acts to submit maps prepared by a registered surveyor?

The fixing of municipal boundaries in Michigan is a legislative function. Shelby Charter Twp v State Boundary Comm 425 Mich 50, 56, n 3; 387 NW2d 792 (1986). In the absence of constitutional limitation, the Legislature may submit the determination of boundaries to the courts, to municipal authorities, or to the qualified electors. Presque Isle Prosecuting Attorney v Rogers Twp, 313 Mich 1, 9-10; 20 NW2d 787 (1945). See also, 2 McQuillin, Municipal Corporations (3d ed), sections 7.01 et seq, p 359 et seq.

A brief review of the statutes you have cited is appropriate 1968 PA 191, MCL 123.1001 et seq; MSA 5.2242(1) et seq, created the State Boundary Commission to consider petitions for incorporation and consolidation of cities and villages and annexation of territory to cities. Midland Twp v State Boundary Comm, 401 Mich 641, 649; 259 NW2d 326 (1977). Section 10 of that statute requires the State Boundary Commission to send a copy of its final order approving an incorporation to the Secretary of State. The Secretary of State has the plain duty under this act to receive and file the order of the State Boundary Commission. The Secretary of State has no other power or duty under the act.

When the State Boundary Commission approves the annexation of territory in which 100 or less persons reside to a city, township, or village pursuant to 1968 PA 191, supra, it must send a certified copy of its order to the Secretary of State for filing as required by MCL 117.9(4); MSA 5.2088(4). A similar duty is imposed upon the State Boundary Commission to send a certified copy of its final order, approving the annexation of territory on which more than 100 persons reside, to the Secretary of State for filing. If the order approves the annexation of territory on which more than 100 persons reside, it is subject to a referendum if a timely referendum petition is filed. MCL 117.9(5); MSA 5.2088(5). These statutory sections impose a duty upon the Secretary of State to receive and file the certified copies of the orders of the State Boundary Commission. The Secretary of State has no other power or duty under these sections.

It is noted that the State Boundary Commission may, pursuant to MCL 42.34; MSA 5.46(34), annex portions of a charter township to eliminate free-standing islands of the township surrounded by an annexing city or to straighten or align exterior boundaries of the city or village to provide for straight boundaries following procedures set forth in MCL 117.9; MSA 5.2088. While the Secretary of State is to receive a copy of any final order of the State Boundary Commission under the latter act, the Secretary of State has no powers conferred or duties imposed by MCL 42.34; MSA 5.46(34).

1984 PA 425, MCL 124.21 et seq; MSA 5.4087(21) et seq, permits the conditional transfer of property between cities, townships, or villages for economic development purposes. The transfer is pursuant to a written contract approved by the legislative bodies of the affected local units for a time period not to exceed 50 years under sections 2 and 4 of that statute. Pursuant to section 10 of the same statute, a duplicate original of the contract is required to be filed with the Secretary of State to be entered into a book and a copy of the contract certified by the Secretary of State is prima facie evidence of the conditional transfer of the property. The Secretary of State has no other powers or duties under that act.

As authorized by MCL 74.6; MSA 5.1470, a county board of commissioners, upon the resolution of a village council and after notice and hearing of interested parties, may order the alteration of the boundaries of the village either by taking from adjoining premises or taking land out of the village. A certified copy of any order changing boundaries is required by the statute to be filed with the Secretary of State. This statute imposes a duty upon the Secretary of State to keep the record on file since it is prima facie evidence of the change in the boundaries of the village and the regularity of the proceedings making the change "in all courts and places." The Secretary of State has no other powers or duties under this statutory section.

Proceedings to incorporate or consolidate the territory of a village or to attach territory to or detach territory from the village upon approval of the electors voting thereon certified by the county board of canvassers shall be filed with the Secretary of State and duly recorded in the books of that office. Certified copies thereof shall be prima facie evidence of the incorporation or consolidation of the village or of the changes in the boundaries of the village, as provided in MCL 78.9; MSA 5.1519. A duty is imposed upon the Secretary of State not only to record the action in a book but also to file a certificate with the Department of Treasury showing the action taken. Id., and MCL 16.182; MSA 3.29(82). The statute confers no other authority and imposes no other duty upon the Secretary of State.

A common thread runs through these statutes relating to establishing or changing the boundaries of municipal corporations. The Secretary of State has not been required by the Legislature in any of the above-cited statutes to examine any of the documents for accuracy of the territorial boundaries described therein. As a repository of the various documents, the Secretary is not empowered by the Legislature to require maps prepared by registered surveyors.

It is my opinion, therefore, in answer to your first question, that the Secretary of State is not required by statute to determine whether land descriptions concerning territories annexed to or detached from municipalities are accurate before boundary documents may be filed.

It is my opinion, therefore, in answer to your second question, that the Secretary of State is not authorized by statute to require municipalities which file materials dealing with municipal boundaries to submit maps prepared by a registered surveyor.

Frank J. Kelley

Attorney General