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

CONSTITUTIONAL LAW:

COUNTIES:

Validity of 1879 PA 154, under Const 1963, art 7, � 9

The limitation in 1879 PA 154, MCL 45.421(1); MSA 5.1101(1), which prohibits a county board of commissioners from decreasing the salary of a county prosecuting attorney during his or her term, is constitutional under Const 1963, art 7, � 9, which grants to these county boards "exclusive power to fix the compensation of county officers not otherwise provided by law."


Opinion No. 6941

June 13, 1997


Honorable Allen Lowe
State Representative
The Capitol
Lansing, MI 48913


You have asked if the limitation in 1879 PA 154, as amended, MCL 45.421(1); MSA 5.1101(1), which prohibits a county board of commissioners from decreasing the salary of a county prosecuting attorney during his or her term, is constitutional under Const 1963, art 7, � 9, which grants to these county boards "exclusive power to fix the compensation of county officers not otherwise provided by law."

Const 1963, art 7, � 9, addresses the compensation of county officers and provides as follows:

Boards of supervisors shall have exclusive power to fix the compensation of county officers not otherwise provided by law.

(emphasis added).

Section 1(1) of 1879 PA 154 also addresses the compensation of county officers and provides as follows:

(1) The annual salary of each salaried county officer, which is by law fixed by the county board of commissioners, shall be fixed by the board before November 1 each year and shall not be diminished during the term for which the county officer has been elected or appointed, but may be increased by the board during the officer's term of office.

(emphasis added).

In evaluating the constitutionality of a legislative enactment, every reasonable presumption must be indulged in favor of the statute's constitutionality. Rohan v Detroit Racing Ass'n, 314 Mich 326, 341-342; 22 NW2d 433 (1946); McDonald Pontiac-Cadillac-GMC, Inc v Saginaw County Prosecuting Attorney, 150 Mich App 52, 58; 388 NW2d 301, lv den, 426 Mich 867 (1986), cert den 484 US 823; 108 S Ct 86; 98 L Ed 2d 48 (1987).

The Michigan Legislature is the repository of all legislative powers subject only to limitations imposed by the state and federal constitutions. The Michigan Constitution is not a grant of legislative power. Rather, it is a limitation on the exercise of otherwise plenary legislative power. Attorney General v Preston, 56 Mich 177, 179; 22 NW 261 (1885); Toy ex rel Elliott v Voelker, 273 Mich 205, 216; 262 NW 881 (1935); Romano v Auditor General, 323 Mich 533, 536-537; 35 NW2d 701 (1949). See also, OAG, 1981-1982, No 5994, p 389, 393 (September 30, 1981).

As noted in Beech Grove Inv Co v Civil Rights Comm, 380 Mich 405, 418-419; 157 NW2d 213 (1968), the Legislature is given considerable discretion in Michigan's 1963 Constitution by the phrase "provided by law."

The committee on style and drafting of the constitutional convention of 1961 made a distinction in the use of the words "prescribed by law" and the words "provided by law." Where "provided by law" is used, it is intended that the legislature shall do the entire job of implementation. Where only the details were left to the legislature and not the over-all planning, the committee used the words "prescribed by law." See 2 Official Record, Constitutional Convention of 1961, pp 2673, 2674.

(Emphasis added.)

In light of the foregoing, use of the phrase "not otherwise provided by law" in Const 1963, art 7, � 9, means that a county board of commissioners may set the salary of county officers, subject to any compensation provisions that have been adopted as law by the Legislature.

In Attorney General v Oakland County, 125 Mich App 157, 158-159; 335 NW2d 654 (1983), the court recognized that under 1879 PA 154, the county board of commissioners has considerable latitude in establishing the compensation of county officers.

Construing this statute, the circuit court concluded that MCL 45.421(1); MSA 5.1101(1) permits the county board of commissioners to increase the salaries of elected officers without limitation as to the effective date of such increases. Further, the circuit court opined that the November 1 date was continued by historical accident.

***


We agree with the circuit court that MCL 45.421(1); MSA 5.1101(1) empowers the county board of commissioners to increase salaries of county officers during their term of office without limitation as to the effective date of such increases. The statute neither requires only one raise per year nor sets a date on which the raises become effective.

Section 1(1) of 1879 PA 154, to the extent that it prohibits a county board of commissioners from decreasing the salary of a county prosecuting attorney during his or her term, is consistent with the Legislature's power to provide by law for the compensation of county officers. This statute does not impair the constitutional power of the county board of commissioners to set a prosecuting attorney's compensation in those instances in which the Legislature has not otherwise provided by law for that compensation.

It is my opinion, therefore, that the limitation in 1879 PA 154, MCL 45.421(1); MSA 5.1101(1), which prohibits a county board of commissioners from decreasing the salary of a county prosecuting attorney during his or her term, is constitutional under Const 1963, art 7, � 9, which grants to these county boards "exclusive power to fix the compensation of county officers not otherwise provided by law."


FRANK J. KELLEY
Attorney General