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. 6890

February 13, 1996

COUNTIES:

A county board of commissioners taking certain actions relating to real property under 1851 PA 156

A county board of commissioners is required to have a two-thirds vote of the members elected to the board to take action with regard to real property under section 11(c), (e), (f), and (p) of 1851 PA 156.

Honorable Art Miller, Jr.

State Senator

The Capitol

Lansing, Michigan

You have asked if a county board of commissioners is required to have a two-thirds vote of the members elected to the board to take certain actions relating to real property under 1851 PA 156, MCL 46.1 et seq; MSA 5.321 et seq (the Act).

Section 3 of the Act sets forth the general rules concerning the number of votes required to conduct county business as follows:

A majority of the members of the county board of commissioners of a county shall constitute a quorum for the transaction of the ordinary business of the county, and questions which arise at its meeting shall be determined by the votes of a majority of the members present, except upon the final passage or adoption of a measure or resolution, or the allowance of a claim against the county, in which case a majority of the members elected and serving shall be necessary. [Emphasis added.]

Section 11 of the Act empowers county boards of commissioners to undertake many actions relating to real property as follows:

(a) Purchase, for the use of the county, real estate necessary for the erection of buildings for the support of the poor of that county and for a farm to be used in connection with that support.

(b) Purchase or lease, for a term not to exceed 5 years, real estate necessary for the site of a courthouse, jail, clerk's office, or other county building in that county.

(c) Determine the site of a county building.

(d) Authorize the sale or lease of real estate belonging to the county, and prescribe the manner in which a conveyance of the real estate is to be executed.

(e) Remove or designate a new site for a county building required to be at the county seat, if the new site is not outside the limits of the village or city in which the county seat is situated, and remove or designate a new site for a county infirmary or medical care facility.

(f) Erect the necessary buildings for jails, clerks' offices, and other county buildings, and prescribe the time and manner of erecting them.

(p) Represent the county and have the care and management of the property and business of the county if other provisions are not made.

(t) Acquire by exchange land needed for county purposes, including the purchase of land to be used in exchange for other land of approximate equal value owned by the federal government and needed for county purposes.

Section 12 of the Act requires that certain of the powers conferred by section 11 of the Act must be exercised by a vote of two-thirds of the members elected to the board as follows:

The powers mentioned in section 11(c), (e), (f), (k), (l), (o), and (p) shall not be exercised without a vote of 2/3 of the members elected to the board.

The Legislature has plainly provided in section 12 of the Act that actions relating to real property under section 11(c), (e), (f), and (p) of the Act require a two-thirds vote of the members elected to the county board of commissioners. Actions relating to real property under section 11(a), (b), (d), and (t) of the Act do not require a two-thirds vote of the members elected to the county board of commissioners.

The power of the Legislature to require a two-thirds vote by a county board of commissioners to take certain actions has been upheld by the Michigan Supreme Court in Wayne County Bd of Supervisors v Wayne Circuit Judge, 111 Mich 33, 34-36; 69 NW 83 (1896) and Thomas v Kent Circuit Judge, 116 Mich 106, 109-112; 74 NW 381 (1898). Those cases were based on the authority of the Legislature to prescribe the powers of county governing boards under Const 1850, art 10, Sec. 6. The successor constitutional provision now authorizing the Legislature to provide for the powers and duties of county governing boards is Const 1963, art 7, Sec. 8.

It is my opinion, therefore, that a county board of commissioners is required to have a two-thirds vote of the members elected to the board to take action with regard to real property under section 11(c), (e), (f), and (p) of 1851 PA 156.

Frank J. Kelley

Attorney General