Oppinions by the Attorney General

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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
FRANK J. KELLEY, ATTORNEY GENERAL

Opinion No. 6705
October 25, 1991
CONSTITUTIONAL LAW:
Const 1963, art 3, Sec. 2
SEPARATION OF POWERS:
Legislative approval of executive decisions
The provisions in section 16 and 16d of 1975 PA 319, which require, respectively, approval of the comprehensive plan and system for the management and use of motor driven off-road recreation vehicles on routes, trails, and areas by the Legislature and the standing committees of both houses dealing with natural resources matters, are in violation of Const 1963, art 3, Sec. 2.
The legislative approval provisions are severable and the remaining provisions of 1975 PA 319 may be given effect.
Honorable James Mick Middaugh
State Representative
The Capitol
Lansing, MI
You have requested my opinion on two questions which may be phrased as follows:
1. Are the provisions of section 16 and section 16d of 1975 PA 319, as, respectively, amended and added by 1991 PA 17, which require, respectively, approval of the comprehensive plan and system for the management and use of motor driven off-road recreation vehicles on routes, trails, and areas by the Legislature and the standing committee of both houses dealing with natural resources matters, in violation of Const 1963, art 3, Sec. 2?
2. If these legislative approval provisions are unconstitutional, are they severable so the remainder of 1975 PA 319 may be given effect?

STATUTORY FRAMEWORK

1975 PA 319, MCL 257.1601 et seq; MSA 9.3300(1) et seq (the Act), provides for the registration and regulation of off-road recreational motor driven vehicles (ORVs).
As originally enacted, section 16 of the Act empowered the Department of Natural Resources to develop a comprehensive plan for the management of ORV use of areas, forest roads and trails within 18 months of effective date of the Act, but did not condition the plan upon prior approval of the Legislature or any legislative committees. As amended by 1991 PA 17, section 16(2) of the Act was rewritten to provide:
(2) The plan shall be revised every 2 years. The plan shall be submitted to the commission for approval. After the commission approves the plan, it shall be submitted to the legislature for approval. The legislature shall approve the plan without amendment by concurrent resolution adopted by both standing committees of the house and senate that consider natural resources matters and both houses of the legislature by recorded vote. The department shall submit any subsequent revisions to the plan approved by the commission to the secretary of the senate and the clerk of the house of representatives at least 20 session days before the effective date of the revisions determined by the commission. If both standing committees of the house and senate that consider natural resources matters fail to reject the revisions within those 20 session days, the revisions shall be considered approved. [Emphasis added.]
Section 16d(1) was added to the Act by 1991 PA 17, to provide:
(1) The department shall develop a comprehensive system for the use of ORVs on routes, trails, and areas which shall be submitted to the commission for approval within 10 days after the effective date of the amendatory act that added this section. If the commission approves the system, it shall establish an effective date for implementation of the system. The department shall submit the system approved by the commission to the secretary of the senate and the clerk of the house of representatives. The legislature shall approve the system without amendment by concurrent resolution adopted by both standing committees of the house and senate that consider natural resources matters and both houses of the legislature by recorded vote. After the system is approved and implemented under this section, all state owned land under the jurisdiction of the department shall be closed to ORV use on the effective date determined by the commission except designated routes, designated trails, and designated areas. The commission shall approve any subsequent revisions to the system and shall establish an effective date for the revisions. The department shall submit the revisions approved by the commission to the secretary of the senate and the clerk of the house of representatives at least 20 session days before the effective date determined by the commission. If both standing committees of the house and senate that consider natural resources matters fail to reject the revisions within those 20 session days, they shall be considered approved. [Emphasis added.]
It is also necessary to consider section 6a of the Act, as added by 1990 PA 71, which established the ORV trail improvement fund for the construction, maintenance, and improvement of ORV trails to be funded with monies collected from fees for registration of ORVs. However, no money in the fund could be expended prior to April 1, 1991. Section 6a(6) of the Act was amended by 1991 PA 17 to provide:
(6) No money in the ORV trail improvement fund may be expended until the comprehensive system for ORV use required by section 16d is approved in the manner provided in section 16d.
1991 PA 17 became effective May 7, 1991.
The development of the comprehensive plan by the Department of Natural Resources for the management of ORV use of areas, routes, and trails was required to be completed by October 1, 1991, subject to approval by the Commission of Natural Resources and approval, without amendment, by concurrent resolution approved by both legislative committees dealing with natural resources matters and both houses of the Legislature. Section 16 of the Act.
A comprehensive system for the use of ORVs on routes, trails, and areas was to be developed by the Department of Natural Resources and submitted to the Commission of Natural Resources for its approval within 10 days after the effective date of 1991 PA 17. The system was then to be submitted to the Legislature for its approval by means of a concurrent resolution adopted by the same two committees and by both houses of the Legislature. Section 16d of the Act.
No monies in the ORV trail improvement fund could be expended until the comprehensive system was approved by both the Commission of Natural Resources and the Legislature. Section 6a of the Act.
The decision to require prior approval by the Legislature of the ORV comprehensive plan, section 16 of the Act, and the ORV comprehensive system, section 16d of the Act, was a deliberate decision. A study of the legislative history of amendatory 1991 PA 17 confirms this. Introduced as HB 4010, the original bill proposed to amend section 16 of the Act to require adoption by the Department of Natural Resources of a comprehensive ORV plan. Although this bill would have required the Department of Natural Resources to submit subsequent revisions in the plan to the house and senate committees considering natural resources matters for their approval, no such legislative approval would have been required for the original plan. HB 4010 also proposed to add section 16d to the Act, to require development of a comprehensive system for the use of ORVs and submission to the Legislature for review and rejection by the Legislature by concurrent resolution adopted by the two committees and by the vote of both houses of the Legislature. While HB 4010 in its original form proposed to amend section 6a of the Act, it did not condition use of ORV trail improvement fund monies on legislative approval of the comprehensive system.
Provisions for legislative approval and the prohibition on spending monies in the ORV trail improvement fund, in the absence of legislative approval, were added to HB 4010 by the Legislature before it became 1991 PA 17. Based on the plain language of these provisions and their legislative history, it is clear that the Legislature intended to make the ORV plan and the ORV system contingent upon legislative approval.

CONSTITUTIONAL ANALYSIS

The people have divided the powers of government among the legislative, executive, and judicial branches in Const 1963, art 3, Sec. 2, and have commanded that "[n]o person exercising powers of one branch shall exercise powers properly belonging to another branch except as expressly provided in this constitution." Id.
Sections 16 and 16d of the Act, respectively, impose duties upon the Department of Natural Resources to develop a comprehensive plan for the maintenance of areas, routes, and trails for use by ORVs and a comprehensive system for the use of ORVs on such routes, trails, and areas. These duties have been entrusted to the Department of Natural Resources, a department of state government in the executive branch. Formulation of such plan and such system is effected through the exercise of executive powers in implementing the relevant statutory provisions. The explicit reservation of the right of prior approval by both houses of the Legislature and both legislative committees represents an assumption of executive power by the Legislature and certain legislative committees to administratively supervise and control both the comprehensive plan and the comprehensive system in violation of Const 1963, art 3, Sec. 2. See Regents of the University of Michigan v Michigan, 395 Mich 52, 67-68; 235 NW2d 1 (1975); OAG, 1989-1990, No 6603, p 229, 238-240 (October 9, 1989); OAG, 1975-1976, No 4873, p 77 (May 2, 1975). This conclusion is equally applicable to those provisions in section 16 and section 16d of the Act that authorize the two legislative committees that consider natural resources matters to reject revisions to the ORV plan and the ORV system.
The Legislature may enact additional legislation concerning the ORV plan and the ORV system if it is not pleased with the plan or system approved by the Commission of Natural Resources. However, the legislation must be enacted by a bill having the force and effect of law, Const 1963, art 4, Sec. 22, rather than by a concurrent resolution that does not have the force and effect of law. Boyer-Campbell Co v Fry, 271 Mich 282, 296; 260 NW 165 (1935).
It is my opinion, therefore, that the provisions in sections 16 and 16d of 1975 PA 319, which require, respectively, approval of the comprehensive plan and system for the management and use of motor driven off-road recreation vehicles on routes, trails, and areas by the Legislature and the standing committees of both houses dealing with natural resources matters, are in violation of Const 1963, art 3, Sec. 2.

SEVERABILITY DISCUSSION

You have also asked whether, if these legislative approval provisions are unconstitutional, they are severable from the remainder of the Act. There is no indication that the Legislature intended the Act to be nonseverable. The remaining provisions are independent and capable of being given effect without reference to the unconstitutional provisions. Thus, the remaining provisions of the Act are valid and may be effectuated. MCL 8.5; MSA 2.216; OAG, 1989-1990, No 6603, supra at 244; OAG, 1967-1968, No 4602, p 186 (February 20, 1968).
It is my opinion, therefore, that the legislative approval provisions are severable and the remaining provisions of 1975 PA 319 may be given effect.
Frank J. Kelley
Attorney General

December 3, 1991

Honorable Dan L. DeGrow
State Senator
The Capitol
Lansing, MI
Honorable James E. O'Neill, Jr.
State Representative
The Capitol
Lansing, MI
Dear Senator DeGrow and Representative O'Neill:
Enrolled House Bill 4572, now 1991 PA 118 which amended the State School Aid Act of 1979, MCL 388.1601 et seq, MSA 15.1919(901) et seq, was signed by the Governor but returned to the House of Representatives in accordance with Const 1963, art 4, Sec. 33, because he vetoed several items pursuant to Const 1963, art 5, Sec. 19. In his accompanying veto message, the Governor listed several sections of the State School Aid Act of 1979 that he termed "inoperative" because they were not reenacted in 1991 PA 118.
You have asked if sections 24, 74, 75, 105a, 111 and 116 of the State School Aid Act of 1979, which were not amended by 1991 PA 118 remain operative and in effect to make appropriations for the 1991-1992 fiscal year.
As you know, most general appropriation acts are enacted annually by the Legislature but with regard to the school aid appropriation, the Legislature has chosen to amend the State School Aid Act of 1979 each year.
The State School Aid Act of 1979 is unquestionably an appropriations act and, indeed, expressly so states in its title. As a general appropriation act, it is subject to the constitutional requirements set forth in Const 1963, art 4, Sec. 31, and art 5, Sec. 18. Board of Education of Oakland Schools v. Superintendent of Public Instruction, 392 Mich 613, 621; 221 NW2d 345 (1974).
In Oakland, supra, the Court dealt with 1970 PA 100, which amended the title and various provisions of 1957 PA 312, (1) the so-called school aid act, which amendment became law without objection of the Governor prior to the commencement of the 1970-1971 fiscal year. The Legislature again amended the school aid act when it passed 1971 PA 134, which contained appropriations for the 1971-1972 fiscal year, and which contained a new section 16a(5), which the Governor vetoed, and with respect to which the Legislature took no further action. The Court held that this action left section 16a(5), as originally enacted, in effect. This provision purported to appropriate funds "[b]eginning in 1971-1972." 392 Mich at 615. The Court found that the provision was not an appropriation.
[A]ny provision that does not take initial effect during the ensuing fiscal year is intended to function only as an authorization--an intention to appropriate.
392 Mich at 620.
At p 621 of Oakland, supra, the Court concluded:
In sum, we believe that the most reasonable construction that can be made of the legislative intent behind the enactment of 1970 PA 100, Sec. 16a(5) is to find that this section expressed only a desire to appropriate in the future. This construction avoids any conflict with the constitutional requirements binding upon both the Legislature and the Governor, and, in our opinion, furthers the comity between these two branches that is necessary for the responsible functioning of the state government. [Emphasis in original.]
In Advisory Opinion on Constitutionality of 1975 PA 227 (Questions 2-10), 396 Mich 465, 501-502; 242 NW2d 3 (1976), the Supreme Court considered an appropriation to the state campaign fund that did take effect during the ensuing fiscal year but then continued for each year thereafter. The Court held that:
This provision is a continuing appropriation, i.e. an appropriation that does take effect in the ensuing fiscal year, but which by its terms continues to appropriate beyond that fiscal period.
After the ensuing fiscal year, in which revenues can be matched with the appropriation, the conflict with art 4, Sec. 31 created by such a statute is identical with that created by the type of provision found in Oakland; in both situations, the budgetary procedure required by the constitutional provision becomes impossible.
Therefore, under the rationale of Oakland, there can be an appropriation to the state campaign fund, only for the ensuing fiscal year but not thereafter, appropriations necessarily being made on a year-to-year basis. [Footnote omitted.]
The Supreme Court has recently again reaffirmed its holding in Board of Education of Oakland Schools, supra, in Frederick v. Presque Isle County Circuit Judge, 439 Mich 1, 14; --- NW2d --- (1991). In Frederick, the issue was which government entity is responsible for paying attorneys assigned to represent indigent criminal defendants in appealing their convictions. The Supreme Court, after noting that "[o]ne legislature cannot limit the power of successor legislatures to appropriate funds", went on to hold that because the relevant statute "was enacted in 1980 and became effective on September 1, 1981, it cannot bind the Legislature with regard to 1988 appropriations. Therefore, the promise or intention expressed in MCL 600.9947; MSA 27A.9947, is not binding and cannot compel the state to assume the responsibility for paying the fees of assigned appellate attorneys."
In light of these cases, an appropriation act provision appropriating money for the ensuing fiscal year and subsequent years expresses the Legislature's intention to appropriate funds in those subsequent years. To be effective as an appropriation for any subsequent year, the provision must be reenacted for that subsequent year. This result is compelled because the Advisory Opinion case prohibits a continuing appropriation.
With respect to OAG, 1975-1976, No 4910, p 201 (December 2, 1975), which is referred to in your opinion request, it is to be noted that footnote 1 stated specifically that "This opinion does not address the validity of a continuing appropriation." Rather, OAG 1975-1976, No 4910, supra, dealt with the efficacy of the veto power of the Governor under Const 1963, art 5, Sec. 19. Citing Oakland, supra, and State v. Roselini, 55 Wash2d 554, 559; 348 P2d 971, 973 (1960), OAG, 1975-1976, No 4910, supra, held that where an act or part of an act repeals or amends an existing act, the veto of the act or part thereof prevents the intended repeal or amendment from taking effect; thus, the existing law is unaffected. That opinion did not consider the question of whether the existing law remained operative and in effect to make an appropriation for the ensuing fiscal year.
Your request inquires whether sections 24, 74, 75, 105a, 111 and 116 of the State School Aid Act of 1979 continue in effect. Not having been repealed, each section continues in effect. Board of Education of Oakland Schools, supra. While those sections remain in effect, they do not appropriate funds for the 1991-1992 fiscal year. Thus, they are and remain an authorization--an intention to appropriate--which the Legislature may choose to support by an appropriation during this fiscal year or in future fiscal years.
Sincerely,
Frank J. Kelley
Attorney General
(1 1957 PA 312 was repealed and superseded by the School Aid Act of 1972, 1972 PA 258)
http://opinion/datafiles/1990s/op06705.htm
State of Michigan, Department of Attorney General
Last Updated 04/12/2001 12:34:15

[Yetti]

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)



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STATE OF MICHIGAN

FRANK J. KELLEY, ATTORNEY GENERAL


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Opinion No. 6731

September 15, 1992

HIGHWAYS AND ROADS:

Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads

CITIES:

Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads

VILLAGES:

Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads

TOWNSHIPS:

Authority of cities, villages and townships to enact ordinances allowing operation of off-road vehicles by permanently disabled persons on county roads

Cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads.

Honorable Tom Alley

State Representative

The Capitol

Lansing, Michigan

You have asked whether cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads.

Under Michigan law, off-road recreation vehicles may not be operated upon a public highway, street or right-of-way except to cross a highway or as authorized by permit for a specific event for a limited duration (e.g. a parade). (1)

In recognition of the utility of off-road vehicles to disabled persons, the Michigan Legislature, in 1991, amended the Michigan off-road recreation vehicle act, 1975 PA 319, MCL 257.1601 et seq; MSA 9.3300(1) et seq, to authorize cities, villages and townships to enact ordinances allowing the operation of those vehicles within their jurisdictions upon public highways and streets.

Section 18(2) of 1975 PA 319, MCL 257.1618; MSA 9.3300(18), as amended by 1991 PA 17, provides:

A city, village, or township may pass an ordinance allowing a permanently disabled person to operate an ORV in that city, village, or township.

Clearly, the Michigan Legislature has authorized cities, villages and townships to adopt ordinances allowing permanently disabled persons to operate off-road vehicles within the confines of their respective political boundaries. Your request, however, raises the question whether this grant of authority is limited in some manner by the jurisdiction of county road commissions over county roads.

The legislative history of 1991 PA 17, House Legislative Analysis, HB 4010 as enrolled, August 7, 1991, states that "cities, villages and townships would still have the authority to pass an ordinance to allow a permanently disabled person to operate an ORV in the municipality." There is no indication that this statutory grant of authority to pass ordinances does not include county roads, under the jurisdiction of county road commissions, located within the boundaries of each municipality.

The right of counties, townships, cities and villages to have reasonable control over their highways and streets is reserved by Const1963, art 7, Sec. 29, which provides, in pertinent part, as follows:

Except as otherwise provided in this constitution, the right of all counties, townships, cities and villages to the reasonable control of their highways, streets, alleys and public places is hereby reserved to such local units of government.

In People v McGraw, 184 Mich 233, 238; 150 NW 836, (1915), the Michigan Supreme Court interpreted Const1908, art 8, Sec. 28, the predecessor to Const1963, art 7, Sec. 29, and held:

[T]he municipality retains reasonable control of its highways, which is such control as cannot be said to be unreasonable and inconsistent with regulations which have been established, or may be established, by the State itself with reference thereto. This construction allows a municipality to recognize local and peculiar conditions and to pass ordinances regulating traffic on its streets, which do not contravene the State laws.

OAG, 1977-1978, No 5307, p 448 (May 18, 1978), addressed whether cities, villages and townships may enact ordinances regulating the use of state trunkline highways within their respective jurisdictions. After examining the relevant constitutional provisions and case law, the opinion concluded, at p 450, that:

Considering these authorities, it is my opinion that, subject to the limitations noted herein, Const1963, art 7, Sec. 29 when read together with Const1963, art 5, Sec. 28 guarantees to local units of government the right to reasonable control over highways and streets, including state trunkline highways, within their municipal boundaries. Local units of government are, therefore, free to enact ordinances restricting commercial vehicles, such as double tandem tankers, to certain routes; they may also impose weight limitations thereon and require that certain types of cargoes be covered. [ Emphasis added.]

The last sentence of Const1963, art 7, Sec. 29, which confers counties, townships, cities and villages with the reasonable control of their highways and streets, starts with the language "[e]xcept as otherwise provided in this constitution." Const1963, art 7, Sec. 16, states that "[t]he legislature may provide the powers and duties of counties in relation to highways, bridges, culverts and airports." Const1908, art 8, Sec. 26, contained similar language. Consistent with Const1963, art 7, Sec. 16, and its predecessor provision, Const1908, art 8, Sec. 26, the Legislature has abolished township roads and placed them under the jurisdiction of county road commissions. See the McNitt Act, 1931 PA 130, which was repealed and replaced by 1951 PA 51, MCL 247.651 et seq; MSA 9.1097(1) et seq, and Union Twp v Mt. Pleasant, 381 Mich 82, 86; 158 NW2d 905 (1968).

The conflicting claims of township and county road commission authority over county roads have been analyzed by Michigan's appellate courts on two occasions. In both instances, township authority prevailed.

The Michigan Supreme Court held, in Union Twp v Mt. Pleasant, supra, 381 Mich, at pp 88-90, that a city could not construct a pipeline to its water source along the right-of-way of a county road running through a township without the approval of both the county road commission and the township. In reaching that result, the Court squarely rejected the claim that, since township roads are now under the control of county road commissions, townships may no longer exercise reasonable control over these roads within their boundaries. Rather, the Court relied upon Const1963, art 7, Sec. 29, in reaching its conclusion that township approval was required.

More recently, in Robinson Twp v Ottawa County Rd Comm'rs, 114 MichApp 405; 319 NW2d 589, lv den 414 Mich 955 (1982), the Michigan Court of Appeals held that a township could enact a truck route ordinance applicable to county roads within the township. The Court of Appeals rejected the claim that townships have no authority to control county roads within their boundaries, holding instead, at p 411, 413:

Basically, defendant's argument rests on a literal reading of the McNitt Act and its successor. Read literally, there would be no township roads and, consequently, no authority in the township to control roads within township boundaries. Yet such an interpretation makes useless art 7, Sec. 29, providing that townships are to have reasonable control over their streets. Certainly, the delegates to the Constitutional Convention of 1963 would not have included the word "townships" in the last sentence of Sec. 29, if, as claimed by defendant, jurisdiction had been lost under the McNitt Act in 1931.



We agree with Union Twp that the McNitt Act transferred to the county road commission the "responsibility for laying out, construction, improvement, and maintenance of township roads", but in other respects, such as weight limits, designation of truck routes and related traffic control matters, control remains with the township.

These authorities compel the conclusion that, pursuant to Const1963, art 7, Sec. 29, and section 18(2) of 1975 PA 319, cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads.

It is my opinion, therefore, that cities, villages and townships may enact local ordinances allowing permanently disabled persons to operate off-road vehicles on county roads that are located within their respective boundaries, notwithstanding the jurisdiction of county road commissions over those roads.

Frank J. Kelley

Attorney General

(1 See MCL 257)1614; MSA 9.3300(14). An off-road recreation vehicle which meets the requirements of, and is registered as, a motor vehicle under the Michigan Vehicle Code, 1949 PA 300, MCL 257.1 et seq; MSA 9.1801 et seq, (e.g. a motorcyle) could, of course, operate on the public highway.




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State of Michigan, Department of Attorney General
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