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
DANA NESSEL, ATTORNEY GENERAL
The DOG LAW: COUNTY BOARDS OF
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County regulation of the keeping of
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The Dog Law of 1919, 1919 PA 339, MCL 287.261 et seq., does not authorize a county to adopt an animal control ordinance regulating the keeping of livestock and poultry.
The county’s general ordinance-making power of MCL 46.11(j) does not authorize a county board of commissioners to adopt a countywide ordinance regulating the keeping of livestock and poultry on residential land.
Opinion No. 7314 July 22, 2021
The Honorable Sarah Anthony
State Representative
S-1087 House Office Building
P.O. Box 30014
Lansing, MI 48909-7514
You have asked whether
a county board of commissioners has the statutory authority to regulate the
keeping of livestock and poultry. In
particular, you ask whether such authority exists in the Dog Law of 1919, 1919
PA 339, MCL 287.261 et seq. (the Dog Law), or in the county’s general
ordinance-making power of MCL 46.11(j).
Your request references an
Ingham County Board of Commissioners’ resolution, which asks whether state law
authorizes a county to regulate the keeping of livestock and poultry on
residential land (i.e., non-agricultural land) by way of a county animal control
ordinance adopted under Section 29a of the Dog Law and MCL 46.11(j). You note the importance of such an interpretation
due to the increasing popularity of keeping livestock and poultry in urban and
suburban areas.
The
Dog Law of 1919
As stated in the title of the
Dog Law, the purposes of the law are:
[Protecting] live stock
and poultry from damage by dogs; providing for the licensing of dogs;
regulating the keeping of dogs, and authorizing their destruction in certain
cases . . . imposing powers and duties on certain state, county, city and
township officers and employees. . . .
In addition to
licensing dogs and protecting livestock and poultry from damage by dogs, the Dog
Law allows a county to establish an animal control agency and “provide for
animal control programs, facilities, personnel and necessary expenses incurred
in animal control.” MCL 287.289a. But section 29a, MCL 287.289a, expressly limits
a county’s jurisdiction to cities, villages and townships that do not have
their own animal control ordinances.
When interpreting a statute,
such as the Dog Law, the primary rule is to discern and give effect to the
intent of the Legislature. Murphy v Mich Bell Tel Co, 447 Mich
93, 98 (1994). That intent is evidenced
by the statute’s plain language. Wickens v Oakwood Healthcare Sys,
465 Mich 53, 60 (2001). If the statute’s language is unambiguous, it must be
presumed that the Legislature intended its clearly expressed meaning. Id. (citations omitted). “[F]urther
construction is neither required nor permitted.” Nastal v
Henderson & Assoc Investigations, Inc, 471 Mich
712, 720 (2005).
While section 29a
authorizes counties to establish animal control agencies and hire animal
control officers, there is no language in the Dog Law that authorizes a county
to regulate the raising of livestock and poultry. Based on the canons of statutory construction
cited above, the Legislature did not, therefore, grant such authority.
A similar question regarding
the scope of a county’s authority under the Dog Law was addressed in OAG, 1977-1978,
No. 5341, p 556 (July 31, 1978), which considered whether the Dog Law
authorized a county to operate a spay and neuter clinic for dogs and cats. That opinion explained that,
consistent with its title, the Dog Law provides for protection of the public
from damage caused by dogs, for the licensing of dogs, for regulation of the
keeping of dogs, and for destruction of dogs in certain cases. Id. at 557. And it concluded that “[n]o provision of the
act specifically or impliedly authorizes a county to establish and maintain a
spay and neuter clinic and cats are not mentioned in either the title or body
of the act. Therefore, this law may not
be used as a source of authority by a county to operate a spay and neuter
clinic for dogs and cats.” Id.
Likewise, since no provision of
the Dog Law specifically or impliedly authorizes a county board of
commissioners to adopt an animal control ordinance to regulate the raising of livestock
or poultry, the Dog Law may not be used as a source of such authority.
It is my opinion, therefore,
that the Dog Law of 1919 does not authorize the county to adopt an animal
control ordinance regulating the keeping of livestock or poultry.
MCL 46.11(j); powers of a county board of
commissioners
As to the other part of your question, a county’s
general ordinance-making authority is created by section 11(j) of 1851 PA 156, MCL 46.11(j), which gives a county board of commissioners the power
to “pass ordinances that relate to county affairs and do not contravene the
general laws of this state or interfere with the local affairs of a township,
city, or village within the limits of the county . . .
.”
“It is elementary that
a county has only such powers as have been granted to it by the Constitution or
the State Legislature.” Alan v Wayne
County, 388 Mich 210, 245 (1972); see also OAG,
2001-2002, No. 7117, p 115 (September 11, 2002) (“A county possesses only
those powers delegated to it.”), citing Wright
v Bartz, 339 Mich
55, 60 (1954). Likewise, “[a] county board of
commissioners has no inherent powers.” OAG,
2001-2002, No. 7117, p 115, citing Mason County Civil Research
Council v Mason County, 343 Mich 313, 324 (1955).
Accordingly,
a county cannot adopt an ordinance unless it has been granted the authority to
do so. Examples of Michigan statutes
that authorize various specific county ordinances include certain zoning
ordinances (MCL 125.3201) and noxious weed ordinances (MCL 247.70). Beyond instances of express statutory
authorization, however, noncharter counties, such as
Ingham County, possess the authority under MCL 46.11(j) to adopt only ordinances
that “relate to county affairs.” OAG, 2001-2002, No. 7117, p 116. County affairs are those “relating to
the county in its organic and corporate capacity and included within its
governmental or corporate powers.” Id. Therefore, county ordinances must relate to,
and are restricted to, affairs of the county and may not interfere with the
local affairs of cities, villages, or townships. Id. (citing OAG, 1989-1990, No. 6665, pp 401, 403 (November 15, 1990);
OAG, 1969-1970, No. 4696, pp 197, 200 (November 25, 1970)).
For
instance, OAG, 1989-1990, No. 6665, p
401, concluded that, although a county lacked authority to regulate or prohibit
the placement of cigarette vending machines within their respective borders, it
could regulate the placement of cigarette machines on county property.
Similarly, OAG, 2001-2002, No. 7096, p 66
(December 26, 2001) addressed a county’s authority to adopt a countywide noise
control ordinance. In evaluating whether
a county had such authority, the opinion recognized that the proposed countywide noise control
ordinance described in the request, if adopted, would apply beyond the affairs
of a county. Id., p 67. The opinion went on to state, however, that “it
is possible that a noise control ordinance could be adopted by a county board
of commissioners, provided that the ordinance was limited to the regulation of
noise on property owned or occupied by the county government or its boards,
commissions, or agencies.” Id. (citing OAG, 1989-1990, No. 6665, pp
401, 403). Because the proposed
countywide noise control ordinance was not limited to county affairs, i.e., the regulation of noise on property owned or occupied
by the county government or its boards, commissions, or agencies, the county
lacked authority to adopt it.
Most recently, OAG, 2001-2002, No. 7117,
p 116 concluded that a county board of commissioners lacks the authority to
adopt a countywide ordinance limiting the amount of well water that may be
withdrawn. The Attorney General opined that
a countywide well water supply ordinance, if adopted, would apply beyond
the affairs of a county since the ordinance does not relate to the county in
its organic and corporate capacity.
Id. On the other hand, a
county could enact a narrow well water supply ordinance provided that the
ordinance is limited to the regulation of water wells on property owned or
occupied by the county government or its boards, commissions, or
agencies.
Id. Additional
support for a county’s limited authority to regulate its own property is found
in MCL 46.11(l) and MCL 46.11(m), which, respectively, authorize a county board
to manage the county’s property and manage the interests and business concerns
of the county. OAG, 2001-2002, No. 7117, p 116.
Applying
this framework to your question of whether a county board of commissioners has
the statutory authority under MCL 46.11(j) to regulate the keeping of livestock
and poultry on residential land, the text of the statute, court precedents, and
Attorney General opinions indicate that such statutory authority does not
exist. The keeping of livestock and
poultry on residential land is not limited to “county affairs” as such activity
does not relate to the county in its organic and corporate capacity and
included within its governmental or corporate powers. Nor is residential land, which is the subject
of your request, owned or occupied by the county government or its boards,
commissions, or agencies.
It is my opinion, therefore, that MCL
46.11(j) does not authorize a county board of commissioners to adopt a
countywide ordinance regulating the keeping of livestock or poultry on
residential land.
Sincerely,
DANA NESSEL
Attorney General