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 - http://www.ag.state.mi.us)

STATE OF MICHIGAN

BILL SCHUETTE, ATTORNEY GENERAL

Opinion No. 7282

The Honorable Bruce Rendon

State Representative

The Capitol

Lansing, MI  48909

    You have asked two questions relating to a county road commission’s authority to impose additional restrictions and charge fees relating to an agricultural hauler’s request for an exception from specific weight restrictions under MCL 257.722(5) of the Michigan Vehicle Code (Code), 1949 PA 300, MCL 257.1 et seq.

     Pertinent to your request, the Code contains several sections governing the size, weight, and loads of vehicles that use roads within the state.  Section 722 of the Code, MCL 257.722, governs the weight of vehicles.  In particular, MCL 257.722(12) imposes a limit on the gross weight of vehicles traveling on interstate highways and other designated roads.  And MCL 257.722(8) decreases both the maximum axle loads and maximum wheel loads otherwise permitted by the Code during the months of March, April, and May.  The purpose of the weight limitations in MCL 257.722 is “to reduce the serious damage caused to our highways by heavily loaded trucks and trailers.”  People v Brown Bros Equip Co, 3 Mich App 618, 621; 143 NW2d 155 (1966), aff’d 379 Mich 363 (1967).

     The subsection that is the subject of your questions, MCL 257.722(5), provides an exception to the limitations in both MCL 257.722(12) (gross weight) and MCL 257.722(8) (seasonal axle and wheel loads) for “a person hauling agricultural commodities.”  The Legislature added the substance of what is now subsection 722(5) in 2000 PA 6.  In its entirety, MCL 257.722(5) currently reads as follows:

The seasonal reductions described under subsection (8) to the loading maximums and gross vehicle weight requirement of subsection (12) do not apply to a person hauling agricultural commodities if the person who picks up or delivers the agricultural commodity either from a farm or to a farm notifies the county road commission for roads under its authority not less than 48 hours before the pickup or delivery of the time and location of the pickup or delivery. The county road commission shall issue a permit to the person and charge a fee that does not exceed the administrative costs incurred. The permit shall contain all of the following:

(a) The designated route or routes of travel for the load.

(b) The date and time period requested by the person who picks up or delivers the agricultural commodities during which the load may be delivered or picked up.

(c) A maximum speed limit of travel, if necessary.

(d) Any other specific conditions agreed to between the parties. 

[MCL 257.722(5); emphasis added.]

    Under this provision, when a hauler of agricultural commodities wishes to benefit from subsection 722(5), the county road commission shall issue the permit if the hauler satisfies certain conditions, and the permit sets forth the route the hauler will use, the time period during which the hauler must pick up or deliver the load based on the hauler’s request, and a maximum speed limit on the hauler’s travel, if necessary. 

     The permit provided for in subsection 722(5) is specific to persons hauling agricultural commodities.  But the Code also generally authorizes any vehicle to apply for a permit to exceed weight and load restrictions applicable in a county.  See MCL 257.725.  Because county road commissions may be conflating the two processes, both are discussed below. 

     You first ask whether a county road commission must issue a permit subject to route restrictions, date and time restrictions, speed limit restrictions, and payment of a reasonable fee, but where an agricultural hauler has not agreed to other restrictions requested by the commission.

    This question implicates subsection 722(5)(d), which requires that “[a]ny other specific conditions agreed to between the parties” also be included in the permit.  Information gathered in connection with your request shows that even when the haulers of agricultural commodities agree to pay a fee and comply with each of the express provisions in subsection 722(5)(a)-(c), some county road commissions refuse to issue haulers a permit unless the haulers agree to additional conditions.  Examples of the specific conditions imposed by county road commissions include the requirement that the applicant indemnify the county road commission, the posting of a security bond with the county road commission, proof of a certain amount of liability insurance, and the naming of the county road commission as an additional insured party on the applicant’s insurance policy. 

     As an initial matter, it is important to note that the Michigan Supreme Court has distinguished between “counties,” which have specific rights granted by the Michigan Constitution, and “county road commissions,” which do not.  “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 Co Rd Comm, 413 Mich 505, 511-512; 322 NW2d 702 (1982).  Therefore, the statutory language alone determines whether county road commissions can lawfully deny an application for a permit under
MCL 257.722(5).

     When interpreting statutes, the goal is to “give effect to the Legislature’s intent, focusing first on the statute’s plain language.”  Malpass v Dep’t of Treasury, 494 Mich 237, 247-248; 833 NW2d 272 (2013) (internal quotation omitted).  In focusing on a statute’s plain language, we also must “examine the statute as a whole, reading individual words and phrases in the context of the entire legislative scheme.” Id.  Provisions of the Michigan Vehicle Code, in particular, must “be read together” in order to discern “the intention of the legislature.”  People v Wolfe, 338 Mich 525, 535; 61 NW2d 767 (1953). 

     The Legislature authorized counties to create county road commissions in the General Highway Law (Highway Law), 1909 PA 283, MCL 220.1 et seq.^[1]  Chapter 4 of the Highway Law requires counties to ensure that the public roads within its control are kept “in reasonable repair, so that they are reasonably safe and convenient for public travel.”  MCL 224.21(2).  If counties do not perform this duty, then the county road commission might be liable for damages incurred from any injuries the failure causes. MCL 224.21(3).^[2]  Chapter 6 of the Michigan Vehicle Code includes numerous sections describing size, weight, and load restrictions.  See MCL 257.716 et seq.  

     As explained above, the purpose of the weight limitations in MCL 257.722 is “to reduce the serious damage caused to our highways by heavily loaded trucks and trailers.”  Brown Bros Equip Co, 3 Mich App at 621.  The Code strikes a balance between the uniformity needed by the operators of heavy vehicles and the right of local communities to address local concerns.  On the one hand, the Code establishes that the “maximum size and weight specified in this chapter are lawful throughout this state,” and mandates that “local authorities shall not alter those . . . weight limitations except as express authority is granted in this chapter.”  MCL 257.716(1). On the other hand, the Code expressly gives local authorities – including county road commissions – several ways to regulate heavy vehicle use on roads under the locality’s jurisdiction.  As the Michigan Supreme Court requires, the specific authority in subsection 722(5) governing the haulers of agricultural commodities must be read in context with the other provisions of the Code.  Wolfe, 338 Mich at 535.

     First, a county road commission can impose weight limitations on roads under its jurisdiction.  MCL 257.726(1)(b).  The provisions of subsection 722(5) do not appear to conflict with this authority.  When a county road commission issues a permit under subsection 722(5), it retains the authority to designate a “route or routes of travel for the load.”  MCL 257.722(5)(a).  The permit can require that the haulers of agricultural commodities to avoid or minimize the use of specific weight-limited roads in order to reach the farm where they are either picking up or dropping off an agricultural commodity.

     Second, MCL 257.722(10) grants a county road commission broad authority to “impose” or “suspend” the restrictions provided in section 722 when the “conditions of the highway may require.”  But that authority does not affect the process both the applicant and the commission must follow, or the substance of what can be included in a permit under subsection 722(5), if the commission has activated the requirement to obtain the permit.  If seasonal weight restrictions are suspended, for example, the permitting requirements are moot.  But if a county road commission imposes seasonal weight restrictions, persons seeking to haul agricultural commodities to or from a farm in excess of the restrictions in subsection 722(8) must obtain a permit under subsection 722(5).      

     Finally, “upon receipt of a written application and good cause being shown,” a county road commission can issue a special permit authorizing a vehicle to use roads under its jurisdiction even though the vehicle exceeds the maximum weight allowed under Chapter 6 of the Code, including MCL 257.722.  MCL 257.725(1).  County road commissions are generally authorized to “prescribe conditions of operation” in a special permit “to protect the safety of the public or to ensure against undue damage to the road foundations, surfaces, structures, or installations.”  MCL 257.725(4).  Specifically, the commission can require an applicant to provide whatever “security” the commission “determines necessary to compensate for damages caused by the movement” authorized in the special permit.  MCL 257.725(4).

     Absent the specific permitting requirements for haulers of agricultural commodities established in subsection 722(5), a hauler would need to apply for a special permit under MCL 257.725 to use vehicles on county roads that exceed the weight limits imposed in MCL 257.722(12) and MCL 257.722(8).  But in 2000, the Legislature created a provision, MCL 257.722(5), to address the particular circumstance of a person who hauls agricultural commodities and needs to deliver the commodities to, or pick them up from, a farm.   

     When a statute provides both a general provision and a specific provision regarding a particular circumstance that would otherwise be governed by the general provision, then the specific provision prevails over the general provision.  Manuel v Gill, 481 Mich 637, 648–649; 753 NW2d 48 (2008).  Here, overweight haulers of agricultural commodities would otherwise be governed by the general provisions for special permits under MCL 257.725.  But the Legislature created provisions in MCL 257.722(5) that are specific to the particular circumstances of people who haul agricultural commodities to and from farms.  Therefore, when it comes to haulers of agricultural commodities that satisfy the conditions of MCL 257.722(5), the specific provisions of subsection 722(5) prevail over the general permit provisions of MCL 257.725.

     Additionally, the text of the statute indicates that the Legislature intended that activities subject to permits under subsection 722(5) not be subject to the special permit provisions in MCL 257.725.  The sections do not reference each other directly, and they use different language.  For example, a permit under subsection 722(5) is available only to “a person hauling agricultural commodities.”  But the special permit under MCL 257.725 is available for any “vehicle or combination of vehicles.”  MCL 257.725(1). 

     And again, even if an applicant under MCL 257.725 demonstrates good cause, the county road commission has discretion, and “may” issue the permit.  MCL 257.725(1).  But if an applicant under subsection 722(5) satisfies the conditions in that subsection, the road commission “shall issue” the permit.  While “the term ‘may’ is permissive . . . the term ‘shall,’ . . . is a mandatory term, not a permissive one.”  In re Forfeiture of Bail Bond, 496 Mich 320, 328; 852 NW2d 747 (2014) (internal quotations omitted).  These differing standards further demonstrate that the Legislature intended subsection 722(5) to operate independently of the more general permitting requirements of MCL 257.725. 

     To qualify for a permit under subsection 722(5), an applicant must satisfy four conditions:  first, the applicant must be “a person hauling agricultural commodities” as that term is defined in the statute; second, the applicant must be a “person who picks up or delivers the agricultural commodity either from a farm or to a farm”; third, the applicant must notify “the county road commission . . . not less than 48 hours before the pickup or delivery of the time and location of the pickup or delivery”; and fourth, the applicant must pay a reasonable fee.  MCL 257.722(5).  If the applicant satisfies these conditions, then the county road commission “shall issue” a permit.  Id.

     The permit that the county road commission is required to issue must designate a route, identify a time period during which the load may be picked up or delivered, and set a speed limit if necessary.  But subsection 722(5)(d) then provides that “the permit shall contain . . . [a]ny other specific conditions agreed to between the parties.”  (Emphasis added).

     The phrase “agreed to between the parties” indicates that the inclusion of “other specific conditions” in the permit requires the agreement of both the hauler and the county road commission.  County road commissions have no express authority to unilaterally impose “other specific conditions.”  If the parties agree to “other specific conditions,” then those conditions “shall” be included in the permit.  MCL 257.722(5)(d).  But if the parties do not agree to “other specific conditions,” then subsection 722(5)(d) does not require that any extra conditions be included in the permit.  The language of subsection 722(5)(d) is unambiguous.  It plainly makes the inclusion of “other special conditions” in the permit conditional on the agreement of the parties.

     When the specific grant of authority described in subsection 722(5) is read in the context of a county road commission’s general authority and the other provisions of the Code discussed above, the statute’s plain language indicates that county road commissions do not have the authority to require “other specific conditions” before issuing a permit under subsection 722(5).  Such a reading does not frustrate the general duty of county road commissions to ensure that the public roads within its control are kept “in reasonable repair, so that they are reasonably safe and convenient for public travel.”  MCL 224.21(2).  While the Legislature imposed this duty on counties, and therefore on county road commissions, the duty is not a general grant of authority to the commissions to take any action they deem necessary.  This is evidenced by the fact that the Legislature carefully outlines a county road commission’s authority to carry out this duty. 

     It is my opinion, therefore, that a county road commission cannot refuse to issue a permit to a person hauling agricultural commodities under MCL 257.722(5) of the Code on the basis that the hauler has not agreed to additional conditions required by the county road commission but not expressly required by subsections 722(5)(a)-(c). 

     You next ask whether a county road commission can charge a fee to issue a permit under MCL 257.722(5) that exceeds the administrative costs the commission incurred to issue the permit. 

     Relevant to this question, subsection 722(5) provides that “[t]he county road commission shall issue a permit to the person and charge a fee that does not exceed the administrative costs incurred.”  MCL 257.722(5) (emphasis added).  As explained above, a county road commission has only the authority “which is legislatively conferred” in a statute.  Arrowhead Dev Co, 413 Mich at 512.  And when interpreting statutes, the goal is to give effect to the intent of the Legislature by focusing on the statute’s plain language.  Malpass, 494 Mich at 247-248.  The plain language of subsection 722(5) says that the fee a county road commission charges to issue a permit under that subsection “shall . . . not exceed the administrative costs incurred.”  There is no indication that the county road commission can charge a fee to cover administrative costs it “incurred” doing anything other than the steps required to “issue a permit” under subsection 722(5). 

     When the Legislature intends to authorize a county road commission to charge a fee for a permit based on a measure other than the administrative costs the commission incurred to issue the permit, it does so expressly.  For example, depending on the nature of an application for a special permit under MCL 257.725, the Legislature authorizes the county road commission to charge “a reasonable inspection fee,” MCL 257.725(4), a set dollar amount that can only be increased annually based on the “consumer price index,” MCL 257.725(5), or, similar to subsection 722(5), a fee that “shall not exceed the administrative costs incurred . . . in issuing the permit,” MCL 257.725(6).  In contrast, the Legislature did not provide the imposition of such fees in subsection 722(5).

     Again, the provisions for a special permit in MCL 257.725 are completely separate from the provisions for a permit under subsection 722(5).  The only fee the Legislature authorizes a county road commission to charge for a permit under subsection 722(5) is one that “does not exceed the administrative costs incurred” by the commission to issue the permit.

     It is my opinion, therefore, that a county road commission cannot charge a person requesting a permit under MCL 257.722(5) of the Code a fee in excess of the administrative costs the county road commission incurred to issue the permit. 

BILL SCHUETTE

Attorney General