May the elected Chief Executive Officer (CEO) of a charter county having a population exceeding 1,500,000 which has adopted a charter form of government pursuant to the enabling act for charter counties, MCL 45.501 et seq.; MSA 5.302(1) et seq., remove incumbent road commissioners and make appointments to fill the vacancies thereby created? On April 26, 1983, the Circuit Court for Wayne County answered this question of first impression in the affirmative and granted summary judgment for plaintiff. On April *648 27, 1983, plaintiff terminated the individual defendants and appointed their successors. On April 29, 1983, the circuit court ordered a stay of its April 26, 1983, order of summary judgment.
In Docket No. 71499 plaintiff appeals as of right from the order of stay, and in Docket No. 71018 defendants appeal from the order of summary judgment. The two appeals were consolidated by order of this Court and argued before the Court July 25, 1983.
The basic facts are straightforward and uncontested. Plaintiff is William Lucas, elected County Executive (CEO) of Wayne County. Defendant Board of County Road Commissioners of Wayne County is the statutory corporate body created pursuant to the county road act, MCL 224.1 et seq.; MSA 9.101 et seq., responsible for the county road system and highways in Wayne County, Detroit Metropolitan and Willow Run Airports and county parks. Defendants Claude Dukes, Grace Hampton, and Harold Bondy (individual defendants) are the incumbent members of the board, having been appointed to those positions by the Wayne County Board of Commissioners pursuant to §6 of the county road law, MCL 224.6; MSA 9.106. Intervening defendant Wayne County Government Bar Association (WCGBA) is the collective-bargaining representative for seven attorneys employed by defendant board.
Pursuant to Const 1963, art 7, § 2, and the enabling legislation enacted in accordance therewith known as the county charter act, MCL 45.501 et seq.; MSA 5.302(1) et seq., a home-rule charter was adopted June 16, 1981, by the Wayne County Charter Commission, and approved by the voters of Wayne County on November 3, 1981. In November, 1982, William Lucas was elected Chief Execu *649 tive Officer. On December 21, 1982, plaintiff filed a complaint in circuit court seeking injunctive relief and alleging that defendant board and the individual defendants were in breach of their fiduciary duty by negotiating labor contracts with the WCGBA. On January 13, 1983, plaintiff filed an amended complaint asserting for the first time the pivotal claim in this litigation — that plaintiff as CEO has the authority to summarily remove the individual defendants from their office as road commissioners and appoint their successors to serve at his pleasure. On the following day, plaintiff moved for summary judgment.
On January 25, 1983, defendant board and the individual defendants filed their motion for summary judgment under GCR 1963, 117.2(1). The basis for that motion was defendants’ assertion that plaintiff lacked authority to remove incumbent road commissioners and appoint their successors. The parties filed answers to each other’s motion for summary judgment and submitted briefs in support of their respective positions. The matter was transferred to Judge Irwin H. Burdick who, after extensive oral argument on April 14, 1983, announced from the bench that he would issue a decision by April 26, 1983. On April 26, Judge Burdick issued a lengthy written opinion in which he concluded that § 14(d)(ii) of the county charter act, MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii), ** gave plaintiff the authority he claimed to remove incumbent road commissioners and appoint their successors. Judge Burdick also entered an order which denied defendants’ motion for summary judgment and granted plaintiff’s motion for summary judgment._
*650 In separate actions, each party appealed as of right from Judge Burdick’s orders. As noted earlier, the two appeals were consolidated and on July 22, 1983, motions to intervene as defendants by Michigan AFSCME Council 25 and County Road Association of Michigan were granted by this Court. In Docket No. 71018, the principal defendants raise four issues for review. A fifth and new issue is raised by intervening defendant County Road Association of Michigan. The sole issue presented in Docket No. 71499 concerns the status of the order of stay as granted by the trial court and as subsequently modified by order of this Court.
I
Does the implementing legislation for counties having a population of over 1,500,000,
In 1966, pursuant to the authority conferred upon Michigan counties in Const 1963, art 7, § 2, to adopt a charter form of government, the Legislature passed
Section 14(d) of
Because § 14(d)(ii) of
The fact that a legislative act contains a population classification which limits the geographical application of the act does not necessarily make the act local or special. If the population classification has a reasonable relation to the purpose of the statute and the statute applies whenever the population classification is met, an act containing such a classification is not thereby made local or special.
Dearborn v Wayne County Bd of Supervisors,
The statute in question concerns the organization of county government, sometimes referred to as "the dark continent” of American government. The least student of urban sociology knows that metropolitan population centers have far greater problems than rural areas with respect to crime and thus the law enforcement services necessary to preserve the public peace, with respect to indigency, and its associated problems of housing, sanitation, and medical treatment, as well as in respect to many other facets of life, such as emergency preparedness, toxic wastes, traffic flow (hence the specific focus on removing the independence of the road commission vis-á-vis the county chief executive), and many others.
Where there is an obvious and intimate relationship between the population of a county and its governmental organization, a statute which distinguishes counties on the basis of population is not invalid as a local act. As this Court said in
Airport Community Schools v State Bd of Ed,
*653 "As amended, [1967 PA 239 ] applies to all counties attaining a population of more than 1,000,000.
"The large number of high school students to be found in non-high school districts in a populous area as opposed to the smaller number in a less populous area and the improbability of relief through annexation or consolidation establish the reasonable relation of the population classification to the purpose of the statute.”
Similarly, in upholding a housing law which required the establishment of a board of tenant affairs in cities having a population over 1,000,000, the Court in
Bankhead v Mayor of River Rouge,
"The population limitation restricts the application of [1968 PA 344 ] § 49 to the City of Detroit. The questions of whether the population limitation constitutes a local act or is a denial of equal protection as an unreasonable classification are discussed in the majority opinion of the Court of Appeals. We agree with the reasoning of that opinion.”
This Court had said in
Bankhead,
"We are unable to say that restriction of the act as expressed in the title of the legislation is arbitrary. The Legislature could reasonably determine that tenants of public housing projects in large cities face considerably different problems than do tenants in smaller cities, such as to warrant classification. For example, tenants in large city public housing projects must compete with a greater number of tenants for individual attention. Tenants of such projects — because they live in the midst of huge urban areas — must cope with not only living in public housing but also living in large cities. Many such distinguishing features exist.”
Because densely populated counties such as Wayne County present problems of governmental
*654
management and control different in kind, quality, and magnitude from those faced by other counties,
Defendants’ strong reliance on Avis Rent-A-Car System, supra, is misplaced. The statute under attack in Avis withdrew from airport concessionaires in counties over 1,000,000 population a tax exemption given airport concessionaires in other counties. The court struck down the statute on grounds that the population of the county had no reasonable relationship to attracting an airport concession. 1 However, in the case before us, there is a reasonable relationship between the population of the county and the need for differentiation of political structure.
II
Does the adopted charter fail to give the CEO authority to appoint and remove road commissioners?
Section 4.385 of the home-rule charter is entitled ”Appointments” and reads:_
*655 "Unless otherwise speciñcally provided by this Charter or law:
"(1) The Deputy CEO, directors, deputy directors, members of boards and commissions, representatives of the County on intergovernmental bodies, and all other officials or representatives not in the classified service shall be appointed by the CEO with the approval of a majority of Commissioners serving.
"(2) If the Commission fails to act on a [sic] appointment within 30 days after its submission to the Commission, the appointment is effective.
"(3) Appointees in County government serve at the pleasure of the appointing authority.” (Emphasis added.)
Plaintiff argues that this section plainly and unambiguously gives him power to remove the individual defendants from their offices as incumbent road commissioners and appoint their successors. Defendants contend that the charter does not confer such authority (a) because the limiting language (emphasized above), "otherwise specifically provided by * * * law”, precludes such authority, and (b) because the charter provisions do not mirror the exact language of the enabling act,
On the date that the charter was adopted, November, 1981, there was a specific statute in existence pertaining to the selection of county road commissioners. That statute was the county road law, § 6 of which provided for the appointment and removal of road commissioners
by the county board of commissioners.
MCL 224.6; MSA 9.106. Further, that section was re-enacted in
We now turn to defendants’ argument that because the charter provisions do not specifically pick up the language of the enabling act the CEO is without power to appoint and remove incumbent road commissioners. According to defendants, the charter must specifically address the removal and appointment of road commissioners as such; to address the removal and appointment of commissioners in general is not enough. On this issue the trial court persuasively stated:
"Defendants’ argument erroneously presupposes that the key word in the statute relied upon, 'provided’, connotes that the charter must mirror word for word the terms of the enabling act. Had the Legislature meant this they could have more clearly expressed their intention by using the phrase 'the charter shall state’ or some other phrase indicating that the charter was to state word for word the content of the enabling act.”
We agree with the trial judge. Carried to its logical extension, defendants’ position would give every department not specifically named as subject to the CEO’s removal powers the opportunity to claim exemption or immunity from such powers. *657 We do not think that was intended by the charter or the implementing legislation. For example, §§4.311 (corporation counsel), 4.321 (personnel), 4.341 (health), 4.351 (public works), and 4.381 (other agencies) call for the creation of named departments to be headed by certain parties but without any mention of appointment and removal. Yet all of them, in our opinion, clearly fall within the language that "directors, deputy directors, members of boards and commissions * * * shall be appointed by the CEO” and "serve at the pleasure of the appointing authority” in § 4.385 of the charter. The department of road commission mentioned in § 4.361 should be treated no less.
Furthermore, there is ample authority for the proposition that statutory provisions not mentioned per se in a municipal charter are automatically read into the charter and become a part thereof. In
City Comm of City of Jackson v Vedder,
"Had the charter provided the bonding limit might be raised or lowered by any different vote than that prescribed by the statute, it obviously would have been of *658 no force. Or had the charter been silent as to the requisite majority, and this controversy had arisen, a construction of the charter would have required us to read into it the legislative provision. This being true, when the Legislature amended the act by requiring a three-fifths vote instead of a two-thirds vote, the amendment was automatically read into the charter, and is now a part of it. ”209 Mich 294 . (Emphasis added.)
This rule that statutory provisions not mentioned in a charter are read into and become a part of the charter has been followed in
City of Jackson v Consumers Power Co,
"It must be assumed that the people, in adopting a constitutional amendment providing for a 15-mill tax limitation which might be increased by charter provision, were conversant with and had in mind the fact that it then was, as it now is, the established law in Michigan that charter provisions of municipal corporations come into being by legislative enactment as well as adoption by local electors. Hence, our decision in City of Hazel Park v Municipal Finance Comm, supra, which is controlling here.”
Therefore, it is irrelevant that the Wayne County charter does not mirror word-for-word the language of the enabling acts. The statutory provisions, by virtue of their enactment into general law, form a part of that charter whether or not repeated therein, fill in the gaps, and supersede *659 any possibly conflicting provision actually contained within the charter.
Ill
Assuming that the CEO would otherwise have appointment and removal powers with respect to road commissioners, are those powers vitiated by
Defendants next argue that enactment of
"(2) In a county having a population of 1,500,000 or more which has adopted a charter under Act No. 293 of the Public Acts of 1966, being sections 45.501 to 45.521 of the Michigan Compiled Laws, the powers and duties which are otherwise provided by law for a board of county road commissioners may be reorganized by amendment to the charter. Funds provided to the county pursuant to Act No. 51 of the Public Acts of 1951, being sections 247.651 to 247.674 of the Michigan Compiled Laws, shall only be expended for the purposes provided for in Act No. 51 of the Public Acts of 1951.” (Emphasis added.)
Based upon this legislative history, defendants conclude that, had the Legislature intended to *660 exclude Wayne County from the long-standing procedure for selection of road commissioners, the earlier versions of HB 5874 would have been passed and that by revising subsection (2) to the form in which it finally did pass, "the Legislature announced that the appointment and removal provisions in subsection (1) of section 6 do apply in Wayne County unless and until the county’s charter is amended to reorganize the road commission’s powers and duties”. (Emphasis added.) Since the Wayne County charter has not been so amended, defendants opine that the CEO is without power to remove and appoint road commissioners.
Defendants’ argument would be persuasive but for the offsetting legislative intent expressed in
Because Act 299 and Act 300 were passed simultaneously, were each dependent upon the enactment of the other, and dealt with the same subject, we cannot agree with defendants that the omission in Act 299 of a provision for appointment and removal of road commissioners by the CEO evidenced a legislative intent to deny that power unless the Wayne County charter was again voted *661 upon. The Legislature could not have intended to undo in Act 299 what it simultaneously was reaffirming in Act 300, viz.: mandating that in a county with more than 1,500,000 population the road commissioners be appointed and removed by the CEO. We agree with plaintiff that to require a vote to amend the charter to empower the CEO to appoint and remove road commissioners would be an absurdity. It would require an amendment to the charter to say what the charter already says.
Finally, on the issue raised, we agree with the trial court that as between Act 299 and Act 300, Act 300 is the more specific statute. It deals specifically with the power of the CEO to appoint and remove road commissioners. Act 299 does not even address the power of the CEO. Rules of statutory construction dictate that a special statute enacted subsequent to a general statute is an exception to the general regulation.
People v Rodgers,
One must also conclude that MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) is more specific because it relates only to counties having more than 1.5 million people. Since MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) is not a fatally defective local act in violation of Const 1963, art 4, § 29 (see Issue I,
supra),
MCL 45.514(d)(ii); MSA 5.302(14)(d)(ii) must control by virtue of the accepted rules of statutory construction because of its specificity. Accordingly, we conclude that
IV
Is the charter invalid because the Governor, lacking an affirmative response from the Attorney-General, improperly approved the charter?
The county charter act describes the manner in which a county charter may be adopted. Section 16 thereof, MCL 45.516; MSA 5.302(16), provides in part:
"The charter shall be submitted to the governor for approval within 30 days after its completion. The charter may be approved by the governor upon written recommendation of the attorney general that it conforms to the provisions of the constitution and statutes of this state. The governor either shall approve or reject the charter within 30 days of its submission.”
The Governor approved the charter July 22, 1981. In a letter dated July 17, 1981, the Attorney General recommended to the Governor that "changes be made to accomplish conformance”. 3 Defendants contend that the Governor’s approval without the Attorney General’s express recommendation of approval renders the charter nugatory.
The word "recommendation” has an established usage; it refers to action which is advisory in nature rather than one having any binding effect. People v Gates, 41 Cal App 3d 590, 599; 116 Cal *663 Rptr 172, 178 (1974). Had the Legislature wished to restrict the power of the governor to approve the charter, it could easily have done so by providing that the Governor not approve the charter unless buttressed by the written recommendation of the Attorney General. Instead, the Legislature merely provided for the Attorney General to act in an advisory capacity. To hold otherwise would be to render the succeeding sentence nugatory, for absent the affirmative recommendation of the Attorney General, the Governor could not approve the charter. Moreover, to thus delimit the power of the Governor would run afoul of the separation of powers principle of Const 1963, art 3, § 2, by virtue of which the executive power is vested solely in the Governor, Const 1963, art 5, § 1.
The Attorney General, albeit a constitutional officer, is a member of the executive branch and thereby constitutionally subservient to the Governor as repository of the executive power of the state. Under the circumstances, the Legislature must be far more specific if it intends to restrict the Governor’s exercise of a delegated duty and to make it dependent upon the approval of an inferior officer. In this respect, the Governor’s decision to approve the charter is entitled to great deference, for the Governor has no less a solemn obligation, see Const 1963, art 11, § 1, than does the judiciary to consider the constitutionality of his every action. See
Rostker v Goldberg,
V
Does
This provocative issue is raised by intervening
*664
defendant County Road Association of Michigan. Because intervenor only came into the case upon appeal to this Court, the issue was not discussed by the trial court. Nowhere in the title or object of the act does
"That is just exactly the issue in this case. The Legislature cannot amend the general highway law,1909 PA 283 , by amending an entirely different statute,1966 PA 293 , unless1909 PA 283 is republished. * * *
"A rule of reason and equity would also require that the legislative body changing the rights and responsibilities of county road commissions has a duty to make that change very clear to them as opposed to the requirement that the attorney or law members on the county road commission do as thorough a research job as is possible by a legislative body.”
Intervening defendant construes
Alan
and
Mok
far too broadly. Contrary to intervenor’s assertion, Michigan case law does not prevent amendment by implication. To the contrary, amendment by implication is permitted without republishing or re-enacting every previous statute affected by the new law. As stated by Justice Coleman upon sustaining the validity of the "No-Fault Automobile”
*665
legislation in
Advisory Opinion re Constitutionality of
"Amendments by implication are an inevitable byproduct of the legislative scheme of government. It boggles the mind to contemplate the laws which would be rendered unconstitutional ab initio and the avalanche of litigation which would follow were we to construe § 25 in so extended a manner as to find unconstitutional its effect upon1972 PA 294 .”
The no-fault statute then under attack modified the title and added a chapter to the Insurance Code but did not mention or cross-reference to over 200 statutes that were related in some way. Justice Coleman noted that because the act was a complete act in itself, did not confuse or mislead, and set forth in full the amendments to the Insurance Code, it did not present the kind of problem to which the rule in Alan was directed.
The situation in the case before us is similar. 1980 PA
1,
unlike the statute in
Alan,
does not purport to insert words from one statute to another. Instead, it is a complete act in itself. It introduces a new form of government,
viz.:
the charter form, and provides that in any county with a population of more than 1,500,000 the government will be centralized by an elected county executive or chief administrative officer who has the power to appoint department heads. It does not amend the county road law as such. That act continues in force and establishes the status of road commissioners for all regular counties. The only time the provisions of
VI
May the stay which was dissolved by the circuit court on April 26, 1983, be retroactively imposed by the circuit court on April 29, 1983, so as to nullify plaintiff’s April 27, 1983, order terminating defendants and appointing successor commissioners?
This question is the sole issue raised on appeal in Docket No. 71499. We find the issue rendered moot by the stay order issued by this Court on May 17, 1983. On May 19, 1983, we clarified the May 17 order by limiting the stay to that portion of the circuit court’s April 26 order "which dissolves the temporary restraining order, dated December 30, 1982, which enjoined the plaintiff from discharging the defendant members of the Board of County Road Commissioners or making new appointments to their positions”.
The order of stay so issued by this Court precluded discharge of the incumbent road commissioners serving on April 26, 1983, and appointment of their successors pending decision by the Court of Appeals. However, this Court having now determined on the merits in Docket No. 71018 that the trial court did not err in granting summary judg *667 ment to plaintiff, the order of stay is hereby dissolved.
Conclusion
In summary, defendants contend that despite the people’s approval of a charter form of government with strong powers vested in an elected chief executive, despite the Legislature’s twice authorizing a new method for appointing and removing road commissioners, and despite the legislative confirmation of such power upon amendment of the county road law in
We decline to do so. Pursuant to Const 1963, art 7, § 2, the first constitutional provision to provide for the creation of charter counties, the Legislature passed
Affirmed. No costs, a question of public importance being involved.
This opinion shall be given immediate effect. GCR 1963, 821.3.
Notes
References in this opinion to this statutory section reflect its proper citation prior to its amendment by
"The legislative purpose in
House Bill 5875 became
The letter from the Attorney General listed some 11 instances where the proposed charter and the implementing legislation did not strictly conform. The letter then stated "[t]he foregoing discusses those charter sections which are at variance with constitutional or statutory law. It is recommended that appropriate changes should be made in such provisions of the charter to conform the charter with the provisions of constitution and statute.”
Mok v Detroit Building & Savings Ass’n No 4,
For other decisions holding that "an act complete within itself, even though repealing by implication another statute, is not one of the evils sought to be prevented by art 4, § 25”, see
Charter Twp of Meridian v East Lansing,