County Com'rs of Oakland County v. Oakland County Executive

• Decision Date: 18 July 1980
• Docket Number: Docket No. 44521
• Citation: 296 N.W.2d 621,98 Mich.App. 639
• Parties: COUNTY COMMISSIONERS OF OAKLAND COUNTY and Oakland County Drain Commissioner, Plaintiffs-Appellants, and The Board of County Road Commissioners of the County of Oakland, Plaintiff, v. OAKLAND COUNTY EXECUTIVE, Defendant-Appellee.
• Court: Court of Appeal of Michigan — District of US

Page 621

296 N.W.2d 621

98 Mich.App. 639

COUNTY COMMISSIONERS OF OAKLAND COUNTY and Oakland County Drain Commissioner, Plaintiffs-Appellants and The Board of County Road Commissioners of the County of Oakland, Plaintiff, v. OAKLAND COUNTY EXECUTIVE, Defendant-Appellee.

Docket No. 44521.

Court of Appeals of Michigan.

July 18, 1980.

Released for Publication Sept. 24, 1980.

Charles J. Porter, Bloomfield Hills, for plaintiffs-appellants; Leroy W. McEntee, of counsel.

Robert P. Allen, Pontiac, for defendant-appellee; George E. Bushnell, Jr., Detroit, Joseph L. Hardig, Jr., Birmingham, of counsel.

Before DANHOF, C. J., and BEASLEY and CYNAR, JJ.

CYNAR, Judge.

This action was commenced on August 28, 1978, against Daniel T. Murphy in his capacity as Oakland County Executive by the filing of plaintiffs' five count complaint for mandamus and declaratory and injunctive relief in the Oakland County Circuit Court. The case was assigned to Judge Robert L. Templin. Count III of the complaint, involving plaintiff L. Brooks Patterson, Oakland County Prosecuting Attorney, and C. Hugh Dohany, Oakland County Treasurer, as defendant, was dismissed on January 9, 1979. Neither plaintiff Patterson nor defendant Dohany are parties to this appeal. Count V, involving the Board of County Road Commissioners, was dismissed upon motion therefor on February 1, 1979.

On February 20, 1979, the trial judge ruled, in an oral opinion from the bench, that 1973 PA 139 was constitutional and that vetoes exercised by appellee Murphy were within his power as county executive. By an order dated March 19, 1979, the trial court denied plaintiffs' motion for summary judgment and granted the defendant county executive's motion for summary judgment on Counts I, II, and IV.

On June 27, 1979, this Court granted an unopposed motion of the Board of County Commissioners to be dropped as a party appellant. This appeal is taken by appellants Henry W. Hoot, an elected County Commissioner of Oakland County, and George W. Kuhn, the elected Drain Commissioner of Oakland County.

The opinion of the trial court and this appeal concern the legal issues raised by: Count I of the complaint (constitutionality of 1973 PA 139); Count II (validity of appellee's veto of the Oakland County Board of Commissioners' resolution withdrawing Oakland County from the Southeastern Michigan Transportation Authority (SEMTA); and Count IV (the authority to veto actions of the Board of Commissioners with respect to the office of the Oakland County Drain Commissioner).

On appeal, no transcript of the proceedings held in the trial court has been made available as required by GCR 1963, 812.2(a); however, on June 8, 1979, the trial court issued an order to omit as part of the record the transcription and filing of the oral arguments of counsel made below.

Oakland County was incorporated in 1850 under Article 10, § 1 of the Michigan Constitution of 1850. On August 6, 1974, the electors of Oakland County voted to adopt an optional unified form of county government as provided for by 1973 PA 139, M.C.L. § 45.551 et seq.; M.S.A. § 5.302(51) et seq. Oakland County has never adopted a charter and has not proceeded to operate with an elected charter commission.

The facts underlying the three vetoes which constitute the substance of this appeal are as follows. On March 4, 1976, the Board of Commissioners resolved to combine the powers, duties and functions of the Drain Commissioner with those of the Public Works Commissioner. Defendant County Executive vetoed the resolution on March 12, 1976, stating his reasons for the veto by letter. A motion to override the veto failed by a vote of 15 to 11 on April 13, 1976. In 1977, the Board of Commissioners passed a resolution amending the proposed 1978 county budget by approving certain salary rates and employment classification changes. By letter dated December 28, 1977, defendant County Executive vetoed a line item providing for the position of Project Engineer Manager. A February 2, 1978, vote of the Board of Commissioners on a motion to override the veto failed by a vote of 10 to 12. On April 6, 1978, the Board of Commissioners, by vote of 18 to 8 elected to withdraw from SEMTA:

"NOW, THEREFORE, BE IT RESOLVED, that the Oakland County Board of Commissioners withdraw the County of Oakland from SEMTA, and establish a separate transportation authority as provided under Public Act 266 and direct State Treasurer Allison Green to forward those monies collected from Oakland County to Oakland County."

This resolution was vetoed by defendant County Executive on April 13, 1978; on April 20, 1978, the Board of Commissioners failed to override the veto by a vote of 7 to 18. The Board of Commissioners propounded another resolution to terminate Oakland County's participation in SEMTA on September 1, 1978.

The plaintiffs' action is for mandamus, declaratory and injunctive relief. Count I of plaintiffs' complaint alleged that 1973 PA 139, the act through which defendant Oakland County Executive occupies his office, is void and unconstitutional: (1) as purporting to create a form of county government not authorized by Article 7, §§ 2, 7, and 8 of the Michigan Constitution of 1963; (2) as failing to provide for the election of a charter commission and the submission of a proposed county charter to popular vote as constitutionally and statutorily mandated; and (3) as divesting the Board of Commissioners of constitutionally delegated legislative and administrative powers by transferring sweeping authority to the county executive. In Count II, plaintiffs contended that the County Executive lacked either the authority or the power to veto the vote of the Board of Commissioners to withdraw from SEMTA. Count IV concerns the validity of appellee's veto of the resolution combining drain and public work functions defined by three acts under appellant Kuhn as public works commissioner, and the validity of appellee's veto of a line item in the 1978 county budget authorizing four "Project Engineer Manager" positions for appellant Kuhn's department.

I. Constitutionality of 1973 PA 139

Const.1963, art. 7, § 1 provides that: "Each organized county shall be a body corporate with powers and immunities provided by law."

In relevant part, art. 7, § 2 states that: " * * * The law may permit the organization of county government in form different from that set forth in this constitution * * *." ¹

Art. 7, § 7, mandates the establishment of a board of county commissioners (board of supervisors) in all organized counties, while art. 7, § 8, delineates the general nature of the powers and duties which devolve upon such board, but not their scope. ²

The language excerpted from §§ 1, 2, 7, and 8 of [98 Mich.App. 646] art. 7 of the Constitution of 1963 make it clear that those sections were not intended to operate ex proprio vigore. Detroit v. Oakland Circuit Judge, 237 Mich. 446, 449-450, 212 N.W. 207 (1927), Saginaw County v. State Tax Comm., 54 Mich.App. 160, 165, 220 N.W.2d 706 (1974), aff'd 397 Mich. 550, 244 N.W.2d 909 (1976). As these provisions are not self-executing, the rights which they bestow and the duties which they impose may not be enforced without the aid of legislative enactment. Detroit, supra, 237 Mich. 450, 212 N.W. 207.

A final constitutional provision of relevance is art. 7, § 34, which reads:

"The provisions of this constitution and law concerning counties, townships, cities and villages shall be liberally construed in their favor. Powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution."

In order to implement art. 7, § 2, the Legislature passed 1966 PA 293, M.C.L. § 45.501 et seq.; M.S.A. § 5.302(1) et seq., which details the framework for establishing charter counties. Section 14 of the act, M.C.L. § 45.514; M.S.A. § 5.302(14), provides in subsection (a) for an elected salaried county executive, and in subsection (b) for the election of a legislative body to be known as the county commissioners.

In 1973, the Legislature passed 1973 PA 139, ³ the constitutionality of which is now called into question by plaintiffs. The act, denominated "optional unified form of county government", declares in its preamble that its purposes are:

" * * * to provide forms of county government; to provide for county managers and county executives and to prescribe their powers and duties; to abolish certain departments, boards, commissions, and authorities; to provide for transfer of certain powers and functions; to prescribe powers of a board of county commissioners and elected officials; to provide organization of administrative functions; to transfer property; to retain ordinances and laws not inconsistent with this act; and to provide methods for abolition of a unified form of county government."

Under M.C.L. § 45.551; M.S.A. § 5.302(51), an unchartered county, such as Oakland County, may adopt an optional unified form of county government. Under such form of government, a county is required to include either an appointed county manager or an elected county executive. M.C.L. § 45.552; M.S.A. § 5.302(52). Oakland County chose the latter course.

As noted above, Oakland County adopted this form of government pursuant to the strictures found in M.C.L. § 45.553; M.S.A. § 5.302(53) through initial adoption thereof by the board of commissioners and subsequent approval by the voters.

With this background, we now address each of plaintiffs' attacks on the constitutionality of 1973 PA 139. First, we are unable to accept plaintiffs' contention that Const.1963, art. 7, §§ 2, 7, and 8 do not authorize the "optional unified form of county government", the adoption of which in Oakland County was originally recommended by the board of commissioners.

We must read the above constitutional provisions, which all relate to the same subject matter, as a whole, in context and with an eye...