The Honorable Kevin Cotter

State Representative

The Capitol
Lansing, MI 48909

     You ask whether a person appointed to fill a vacancy in the office of elected county road commissioner holds that office until the expiration of that term as provided for in the County Road Law, MCL 224.1 et seq., or instead must be elected to fill the balance of the term in the next general election as provided for in the Michigan Election Law, MCL 168.1 et seq. 

     Information obtained in conjunction with your request reveals that the relevant county road commissioner was elected to a six-year term at the    November 2, 2010, general election.  This individual resigned from office in March 2013, a little over two years into the term.  Another individual was then appointed by the board of county commissioners in April 2013 to fill the vacancy created by the resignation.  There is now a question regarding the length of the appointed commissioner’s term of office based on a perceived conflict between the County Road Law and the Michigan Election Law.

     Generally, in a county where the county road system is adopted, as here, the members of the board of county road commissioners “shall be elected by the people of the county,” and the election shall be conducted at the November general election.  MCL 224.6(1) and (3).  A county road commissioner’s term of office commences on January 1 in the year “following his or her election,” MCL 224.6(3), and a commissioner’s regular term of office is six years.  MCL 224.7.  These elections are conducted “the same as [ ] prescribed by law for other like county elections, except as herein otherwise provided.”  MCL 224.5.  However, counties containing 12 or more townships may provide for an appointed board of county road commissioners, rather than an elected board.  See MCL 224.6(1) and (4).  See also OAG, 1985-1986, No 6322, p 170 (November 15, 1985) (discussing changes in methods of selecting county road commissioners).

     With respect to a vacancy in office of county road commissioner, the County Road Law currently provides that:

If a vacancy occurs in the office of county road commissioner, the county board of commissioners shall appoint a county road commissioner to fill the vacancy.  The county road commissioner who is appointed shall hold office for the unexpired portion of the term in which the vacancy occurs.  Each county road commissioner shall hold office until his or her successor is elected or appointed and qualified.   [MCL 224.8(1); emphasis added.]

     The Michigan Election Law contains a similar provision but includes language specifically addressing vacancies in the office of an elected county road commissioner:

If a vacancy occurs in the office of county road commissioner, a qualified person shall be appointed to fill the vacancy by the county board of commissioners.  The person so appointed shall take the oath of office, give bond in the manner required by law, and hold office for the remainder of the unexpired term and until a successor is elected and qualified.  However, in a county in which county road commissioners are elected, if the next general November election is to be held more than 182 days after the vacancy occurs, and it is not the general November election at which a successor in office would be elected if there were no vacancy, the person appointed shall hold office only until a successor is elected at the next general November election in the manner provided by law and qualifies for office.  The successor shall hold the office for the remainder of the unexpired term.  [MCL 168.269; emphasis added.]

     Under the County Road Law, the appointee shall hold office for the unexpired portion of the term.  MCL 224.8.  In contrast, the Michigan Election Law states that the appointee shall hold office only until a successor is elected and qualified at the next general November election, if the vacancy occurs more than 182 days before that election is scheduled.  MCL 168.269.^[1] 

     You ask which of these statutes applies to a road commissioner appointed to fill a vacancy in a county with an elected board of road commissioners. 

     Previously, Attorney General Frank Kelley addressed a similar question in OAG, 1981-1982, No 5849, p 36 (January 30, 1981).  There, Attorney General Kelley concluded that the Michigan Election Law was controlling because it was the later of the two statutes to be amended.  The opinion observed that section 269 of the Michigan Election Law had been amended by 1968 PA 156^[2] to include the language prohibiting the appointee’s holdover in office if the next general election would occur more than “150 days” after the vacancy. Id. at p 37.^[3]  Section 8, MCL 224.8, of the County Road Law, however, had not been amended since 1951.  Id.  Employing the principle of statutory construction that “the last expression of the Legislature must control,” id., citing Southward v Wabash R Co, 331 Mich 138; 49 NW2d 109 (1951), the Attorney General concluded that section 269 of the Michigan Election Law controlled:

[A] vacancy in the office of member of an elected county road commission may be filled for the unexpired term, unless it occurs more than 150 days before a general election, in which case the vacancy is filled only for a term to expire when a successor is elected at the next general election. [Id. at p 37-38.]^[4]

However, after that opinion, the County Road Law was amended by 1994 PA 320.  Public Act 320 amended section 8, MCL 224.8, by authorizing county boards of commissioners to allow road commissioners to participate in insurance and retirement programs.  See MCL 224.8(3).  The Act also amended the language at issue here regarding appointments to the current version quoted above.  Previously, section 8, MCL 224.8, provided:

In case a vacancy shall occur in the office of county road commissioner, the board of supervisors shall appoint a commissioner to fill such vacancy, who shall hold office for the unexpired portion of the term in which the vacancy occurs.  Each commissioner shall hold his office until his successor is elected or appointed and qualified.  The board of supervisors shall fix the compensation of such commissioners.

     Public Act 320 changed the appointing authority from the board of supervisors to the board of county road commissioners, but retained the language providing for an appointee to hold office for the remainder of the unexpired term.

     The 1994 amendment to the County Road Law raises a question regarding the continuing validity of OAG No 5849’s conclusion that the Michigan Election Law applies over the County Road Law.  For the reasons set forth below, I conclude that the Michigan Election Law continues to control over the County Road Law where a vacancy in an elected county road commission office occurs more than 182 days before the next November general election, albeit for a different reason than that stated in OAG No 5849. 

     Statutes addressing the same subject matter or sharing a common purpose are in pari materia and must be read together as one law, even where there is no reference to one another.  Maple Grove Twp v Misteguay Creek Intercounty Drain Bd, 298 Mich App 200, 212; 828 NW2d 459 (2012).  If the two statutes can be construed harmoniously, that construction controls.  In re Project Cost & Special Assessment Roll for Chappel Dam, 282 Mich App 142, 148; 762 NW2d 192 (2009).

     Here, section 8 of the County Road Law and section 269 of the Michigan Election Law address the same subject matter or share a common purpose—filling vacancies on boards of county road commissions.  Thus, the statutes are in pari materia and must be read collectively and harmonized, if possible.  Reading these statutes together, it is possible to harmonize the two.  

     Section 269 can be construed as creating an exception to the general vacancy-filling provision in section 8 for vacancies in counties “in which county road commissioners are elected,” and where the vacancy occurs within a particular timeframe—more than 182 days before the next November general election.  This provision and others like it express the Legislature’s preference that elected offices be held by popularly elected candidates, rather than appointees.  Interpreting section 269 in this manner effectuates the Legislature’s intent.  And under this construction, section 8 will continue to apply to appointments in counties where county road commissioners are appointed, rather than elected and to counties with elected road commissioners where a vacancy in office occurs within 182 days of a November general election.  In this way, each statutory provision continues to have force and effect. 

     Moreover, this construction would result even if the two statutes were considered to be in conflict.  When two statutory provisions conflict, the more specific provisions ‘“prevail over any arguable inconsistency with the more general rule.’”  Miller v Allstate Ins Co, 481 Mich 601, 613; 751 NW2d 463 (2008), quoting Jones v Enertel, Inc, 467 Mich 266, 271; 650 NW2d 334 (2002).  A statutory provision is more specific when it “applies to a more narrow realm of circumstances.”  Id. at 613.  And “if two statutes conflict, the specific statute prevails over the general one, even if it were enacted before the more general statute.”  Lapeer County Abstract & Title Co v Lapeer County Register of Deeds, 264 Mich App 167, 180-181; 691 NW2d 11 (2004) (emphasis added), citing Bauer v Dep’t of Treasury, 203 Mich App 97, 100; 512 NW2d 42 (1993), citing Imlay Twp School Dist v State Bd of Ed, 359 Mich 478; 102 NW2d 720 (1960).

     In the context of the question raised here, section 269 of the Michigan Election Law is more specific because it expressly only applies to counties “in which county road commissioners are elected,” and where the vacancy occurs more than 182 days before the next November general election, whereas section 8 of the County Road Law applies more generally to vacancies on appointed road commissions and to elected road commissions where the vacancy occurs within 182 days of a November general election.  Section 269 applies to the more narrow realm of circumstances, and thus controls over section 8 of the County Road Law under the facts presented here.  Miller, 481 Mich at 613.  This is so despite the fact that section 8 of the County Road Law was more recently amended.  Lapeer County, 264 Mich App at 181.  To the extent the reasoning set forth in OAG No 5849 conflicts with that set forth here, OAG No 5849 is superseded.

     Here, the vacancy occurred in March 2013, and the next November general election will be November 4, 2014.  Because more than 182 days will elapse between the vacancy and the general election, the individual previously appointed to fill the vacancy holds office only until a successor, either the appointee or another candidate, is elected and qualified at the November 2014 general election.  The elected successor will hold office for the remainder of the unexpired term.

     It is my opinion, therefore, that under section 269, MCL 168.269, of the Michigan Election Law, an individual appointed to fill a vacancy on an elected board of county road commissioners holds office for the remainder of the unexpired term, unless the vacancy occurred more than 182 days before the next November general election, if that election is not the November general election at which a successor in office would be elected if no vacancy occurred.  In that case, the appointee holds office only until the appointee or another candidate is elected to serve for the remainder of the unexpired term at the next November general election.

BILL SCHUETTE
Attorney General