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

MIKE COX, ATTORNEY GENERAL

COUNTIES:

COUNTY ROAD COMMISSIONS:

HIGHWAYS AND ROADS:

Authority of county road commissions to require hauling permits

County road commissions have no independent authority to require that haul route permits be obtained before trucks carrying construction materials may be operated on county roads so long as the trucks are otherwise in compliance with the Michigan Vehicle Code.

County boards of commissioners do not possess, and therefore may not delegate to county road commissions, authority to require that haul route permits be obtained before trucks carrying construction materials may be operated on county roads so long as the trucks are otherwise in compliance with the Michigan Vehicle Code.

Opinion No. 7175

June 13, 2005

Honorable Daniel J. Acciavatti
State Representative
The Capitol
Lansing, MI

You have requested my opinion on several questions concerning the authority of county road commissions or county boards of commissioners to require that haul route permits be obtained before trucks loaded with highway construction materials may be operated on county roads.

As background for your questions, you describe a circumstance that you indicate is typical of a practice in numerous counties. Paraphrasing that description, county road commissions are requiring private truckers who haul highway construction materials (soil, sand, stone, cement, asphalt, concrete, and similar materials) to and from highway projects over county roads to obtain a hauling permit from the road commission. To obtain the permits, truckers are required to pay fees, make cash deposits, and post bonds as security for any damage that the hauling may cause to the county roads. Apparently, the concern is with damage that may be caused by the weight of the trucks. Fees are imposed for inspection of the haul routes and to restore any damage that the commissions determine have been caused by the hauling. For purposes of your questions, you ask that the following assumptions be made: (1) that the trucks are within the weight limitations set forth in section 722 of the Michigan Vehicle Code (Code), MCL 257.722, and thus no permit is required under section 725 of the Code, MCL 257.725; and (2) that the haul routes have not been designated with special weight limitations, or to exclude trucks, under section 726 of the Code, MCL 257.726.

You first ask if a county road commission may legally require a private business to obtain such a haul route permit.

"A county road commission draws its legal life from the county road law and, as a creature of that legislation, the commission has no power save that which is legislatively conferred." Arrowhead Dev Co v Livingston County Rd Comm, 413 Mich 505, 512; 322 NW2d 702 (1982). Section 9(2) of the County Road Law, 1909 PA 283, MCL 224.9(2), provides:

The board of county road commissioners shall act as an administrative board only and the function of the board shall be limited to the formulation of policy and the performance of official duties imposed by law and delegated by the county board of commissioners . . . . [Emphasis added.]

Whether the power to require haul route permits may lawfully be delegated by the county board of commissioners will be addressed later.

In general, the County Road Law empowers a county road commission to construct, improve, and maintain county roads, and perform specified administrative duties relating to them.1  A board of county road commissioners has the authority and responsibility to maintain those roads so they are reasonably safe and convenient for public travel:

A county shall keep in reasonable repair, so that they are reasonably safe and convenient for public travel, all county roads, bridges, and culverts that are within the county's jurisdiction, are under its care and control, and are open to public travel. [MCL 224.21(2).]

A review of the County Road Law reveals no express grant of authority for county road commissions to require truckers to obtain a haul route permit.2

The Vehicle Code authorizes county road commissions to regulate truck traffic. But no provision of the Code allows county road commissions to require truckers to obtain a hauling permit in order to haul highway construction materials. Neither does a search of the Michigan Compiled Laws disclose any other source of such authority.

To fully analyze your question, however, it is necessary to consider whether a road commission has the implied power to require haul route permits. As the Supreme Court stated in Dep't of Public Health v Rivergate Manor, 452 Mich 495, 503; 550 NW2d 515 (1996):

The absence of an explicit grant of authority is not dispositive. This Court, in Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951), said "powers [of administrative boards] are limited by the statutes creating them to those conferred expressly or by necessary or fair implication." Quoting 42 Am Jur, 26, pp 316 ff.  [Emphasis in original.]

Coffman v State Bd of Examiners in Optometry, 331 Mich 582, 590; 50 NW2d 322 (1951), explains more fully the principle of necessary and implied powers:

In 42 Am Jur, 26, p 316 et seq., it is stated:

"Administrative boards, commissions, and officers have no common-law powers. Their powers are limited by the statutes creating them to those conferred expressly or by necessary or fair implication. * * * In determining whether a board or commission has a certain power, the authority given should be liberally construed in light of the purposes for which it was created and that which is incidentally necessary to a full exposition of the legislative intent should be upheld as being germane to the law. * * * Implication of necessary powers may be especially appropriate in the field of internal administration. However, powers should not be extended by implication beyond what may be necessary for their just and reasonable execution." [Emphasis added.]

The most relevant provisions of the Code must be reviewed to determine if the power to require haul route permits is necessary for the just and reasonable execution of a county road commission's expressly granted powers.

In general, the Code sets out detailed parameters for the operation of trucks, including their permissible size and weight, the circumstances in which permits may be required, and the extent to which they may be regulated.

For example, section 726(1) of the Code, MCL 257.726(1), allows a county road commission to prohibit the operation of trucks on designated highways, designate the specific highways that trucks may use, or impose limitations as to the weight of trucks on designated highways:3

Local authorities and county road commissions with respect to highways under their jurisdiction, except state trunk line highways, by ordinance or resolution, may do any of the following:

(a) Prohibit the operation of trucks or other commercial vehicles on designated highways or streets.

(b) Impose limitations as to the weight of trucks or other commercial vehicles on designated highways or streets.

(c) Provide that only certain highways or streets may be used by trucks or other commercial vehicles.

Section 725(1) of the Code, MCL 257.725(1), authorizes jurisdictional authorities, which includes county road commissions, to issue permits to allow the operation of trucks that would otherwise violate the size, weight, or other restrictions of the Code:

Upon receipt of a written application and good cause being shown, a jurisdictional authority may issue a written special permit authorizing an applicant to operate upon or remove from a highway maintained by that jurisdictional authority a vehicle or combination of vehicles that are any of the following:

(a) Of a size, weight, or load exceeding the maximum specified in this chapter.

(b) Otherwise not in conformity with this chapter.

That statute does not, however, authorize a county road commission to require a hauling permit for a truck that complies with the size and weight requirements.

Another statute, section 18 of 1925 PA 368, MCL 247.188, does require the consent of the road commission, and the posting of a bond to cover possible damage, but only under the described conditions before a building or other obstruction to traffic is moved on the highway:

No building, or other obstruction to traffic shall be moved across, upon or along any road without consent being first obtained from the commissioner or commissioners having jurisdiction over the road, and without first executing to such commissioner or commissioners, a bond in an amount sufficient to cover all possible damage to the road on account of such moving, to be determined by the commissioner or commissioners aforesaid, and conditioned for the payment of all such damage or injury to the road on account of such moving.

These laws establish that the Legislature chose to be specific in describing the powers of local government to regulate truck traffic, rather than delegating broad administrative discretion to them.

Moreover, to the extent any haul route permit requirement is intended to regulate the weight of trucks that are within the weight limitations of the Code, any possibility of implying the existence of the power is expressly negated. Section 716(1) of the Code, MCL 257.716(1), prohibits local authorities from altering the size and weight limitations provided in the Code, except as it specifically allows:

Unless specifically declared to be a civil infraction, it is a misdemeanor for a person to drive or move or for the owner to cause or permit to be driven or moved on a highway a vehicle or vehicles of a size or weight exceeding the limitations stated in this chapter or otherwise in violation of this chapter, and the maximum size and weight specified in this chapter shall be lawful throughout this state, and local authorities shall not alter those size and weight limitations except as express authority is granted in this chapter. [Emphasis added.]

In Michigan Municipal Liability & Property Pool v Muskegon Bd of County Road Comm'rs, 235 Mich App 183, 191; 597 NW2d 187 (1999), the Court held that "[a] power is 'necessarily implied' if it is essential to the exercise of authority that is expressly granted." In view of the specific provisions of the Code and other laws concerning the powers of county road commissions to regulate the operation of trucks on county roads, there is no basis for concluding that the power to require haul route permits can be implied from the powers expressly granted.

It is my opinion, therefore, in answer to your first question, that county road commissions have no independent authority to require that haul route permits be obtained before trucks carrying construction materials may be operated on county roads so long as the trucks are otherwise in compliance with the Michigan Vehicle Code.

You also ask if a county board of commissioners may lawfully delegate the authority to require haul route permits to a county road commission.

The authority of county boards of commissioners regarding roads must also be found in statutes. Const 1963, art 7, 16, states:

The legislature may provide for the laying out, construction, improvement and maintenance of highways, bridges, culverts and airports by the state and by the counties and townships thereof; and may authorize counties to take charge and control of any highway within their limits for such purposes. The legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports; may provide for county road commissioners to be appointed or elected, with powers and duties provided by law. [Emphasis added.]

This legislative power was recently confirmed in Wayne County Bd of Comm'rs v Wayne County Airport Authority, 253 Mich App 144, 180; 658 NW2d 804 (2002): "[T]he Legislature has the power to regulate the powers and duties of counties in relation to highways and airports pursuant to Const 1963, art 7, 16 . . . ." In Alan v Wayne County, 388 Mich 210, 245; 200 NW2d 628 (1972), the Court emphasized: "It is elementary that a county has only such powers as have been granted to it by the Constitution or the state Legislature."

Under section 11(j) of 1851 PA 156, MCL 46.11(j), a county board of commissioners may "pass ordinances that relate to county affairs and do not contravene the general laws of this state . . . ." As explained above, it would contravene the Michigan Vehicle Code to require that truckers obtain a haul route permit before operating trucks on county roads where those trucks are in full compliance with the Code.

Under section 11(m) of 1851 PA 156, a county board of commissioners may:

Establish rules and regulations in reference to the management of the interest and business concerns of the county as the board considers necessary and proper in all matters not especially provided for in this act or under the laws of this state. [MCL 46.11(m).]

But the regulation of trucks on highways is a matter especially provided for in the Michigan Vehicle Code. The provisions of the Code cited and quoted above negate any legislative intent to confer on county boards of commissioners the power to require truckers who are in compliance with the Code's requirements to obtain a haul route permit to operate on county roads.

It is my opinion, therefore, in answer to your second question, that county boards of commissioners do not possess, and therefore may not delegate to county road commissions, authority to require that haul route permits be obtained before trucks carrying construction materials may be operated on county roads so long as the trucks are otherwise in compliance with the Michigan Vehicle Code.

In view of my answers to your first two questions, it is not necessary to address your other questions.

Mike Cox
Attorney General

1See, e.g, MCL 224.19 - 224.21.

2
A county road commission may seek damages from a person who injures a county road.  MCL 224.19(4).

3Again, for purposes of analyzing your question, this opinion will assume that the trucks are in full compliance with any restrictions imposed under this provision and any other provisions of the Code.