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Whether fire authorities may adopt ordinances

Fire authorities incorporated under the Municipal Emergency Services Act are not empowered to adopt ordinances.

Opinion No. 7150

March 1, 2004

Honorable Valde Garcia
State Senator
The Capitol
Lansing, MI

Honorable Joe Hune
State Representative
The Capitol
Lansing, MI

Honorable Chris Ward
State Representative
The Capitol
Lansing, MI 48909

You have asked if fire authorities incorporated under the Municipal Emergency Services Act (Act), 1988 PA 57, MCL 124.601 et seq, are empowered to adopt ordinances.

Generally, the title to an act is instructive as to the subjects the Legislature addresses within. See Baker v State Land Office Bd, 294 Mich 587, 597; 293 NW 763 (1940). The Act's title provides:

AN ACT to provide for the incorporation by 2 or more municipalities of certain authorities for the purpose of providing emergency services to municipalities; to provide for the powers and duties of authorities and of certain state and local agencies and officers; to guarantee certain labor contracts and employment rights in regard to the formation and reorganization of authorities; to provide for certain condemnation proceedings; to provide for the levy of property taxes for certain purposes; and to prescribe penalties and provide remedies.

Under the Act, two or more municipalities may incorporate an authority for the purpose of providing emergency services. MCL 124.602. The term "emergency services" is defined in section 1 of the Act as follows:

"Emergency services" means fire protection services, emergency medical services, police protection, and any other emergency health or safety services designated in the articles of incorporation of an authority. [MCL 124.601(b).]

An authority is created under the Act once the legislative bodies of the incorporating municipalities adopt the authority's articles of incorporation. It is "a body corporate" and "possesses all the powers necessary to carry out the purposes of its incorporation, and those incident to those purposes" of providing emergency services to municipalities. MCL 124.606. In addition to these general and incidental powers, the Legislature has enumerated in sections 7 through 12 of the Act, additional powers that are possessed by authorities incorporated under the Act. MCL 124.607-MCL 124.612.

A long-standing rule pertinent to your inquiry was summarized by the Michigan Supreme Court in the case of Home Owners’ Loan Corp v Detroit, 292 Mich 511, 515; 290 NW 888 (1940), as follows:

"It is a general and undisputed proposition of law that a municipal corporation possesses and can exercise the following powers, and no others: first, those granted in express words; second, those necessarily or fairly implied in or incident to the powers expressly granted; third, those essential to the accomplishment of the declared objects and purposes of the corporation, --not simply convenient, but indispensable. Any fair, reasonable, substantial doubt concerning the existence of power is resolved by the courts against the corporation, and the power is denied."

Review of the general and incidental powers provided in section 6 of the Act, and the additional powers provided in sections 7 through 12, fails to disclose express legislative authorization for emergency services authorities to enact ordinances. Nor does a review of the statutory powers of emergency services authorities lead to the conclusion that the power to adopt ordinances is a power that is "necessarily or fairly implied in or incident to the powers expressly granted" or "essential" or "indispensable" to the purposes for which emergency services authorities are incorporated. Home Owners, supra.

The Michigan Legislature has authorized authorities created under the Act to adopt "bylaws and rules of administration," MCL 124.609(a), and to enter into contracts that establish the charges for the emergency services provided by the authority, MCL 124.608. The Legislature, however, has neither expressly nor by fair implication granted authorities incorporated under the Act the power to enact ordinances.

The power to adopt ordinances is a governmental function conferred by the Legislature upon local governmental units for the governance of their local affairs. Included in a local government's ordinance authority is the power to enforce ordinances, generally by fines not to exceed $500.00 or penalties of up to 90 days in jail. Examples of the Legislature having authorized local governmental units to adopt and enforce ordinances are contained in sections 3(k) and 4i of the Home Rule City Act, MCL 117.3(k) and MCL 117.4i; in Chap VI, sections 1 through 14 of the General Law Village Act, MCL 66.1-MCL 66.14; and in sections 1 through 7 of the Township Ordinances Act, MCL 41.181-MCL 41.187. The Legislature has not conferred similar power upon authorities incorporated under the Act.

Section 2(4) of the Act, MCL 124.602(4), does not alter this conclusion. This section provides:

The laws of this state applying to a municipality that becomes a part of an authority also shall continue to apply to the municipality and the authority after the municipality becomes a part of the authority. [MCL 124.602(4).]

In accordance with the rule of statutory construction that the language of a statute must be construed according to its plain and ordinary meaning, Massey v Mandell, 462 Mich 375, 380; 614 NW2d 70 (2000), this provision only assures the continued application of the laws of this State following the incorporation of an emergency services authority. See also MCL 8.3a (stating the applicable rule of construction). It does not grant any additional powers to either municipalities or authorities. To construe this provision as vesting in an authority all the powers conferred by law on municipalities, including the police power to adopt ordinances that could subject violators to criminal penalties, would not be a "fair" or " reasonable" construction of the statute. Home Owners, supra.

It is my opinion, therefore, that fire authorities incorporated under the Municipal Emergency Services Act are not empowered to adopt ordinances.

Attorney General