Michigan counties: Broad or limited powers under the state constitution and statutes?

The Guide to Michigan County Government is a great source of detailed information about the structure, function, and services provided by counties in Michigan.

Counties in Michigan are limited in their powers. The state constitution and statutes define the power counties have. Ken VerBurg, MSU professor emeritus looks at the impact of both “strict construction” and “contemporary construction” on counties in the 2007 edition of his book, Guide to Michigan County Government.

“The main definition of strict construction of law as it relates to local units came from Justice John F. Dillon, a member of the Iowa Supreme Court in the late 1800s.

His opinion, Dillon’s Rule, states that local governments may exercise those powers “…granted in express words; ... necessary or fairly implied in or incident to the powers expressly granted; ... [and] essential to the declared objects and purposes of the corporation—not simply convenient, but indispensable.”

Then he added this zinger: “Any fair, reasonable, or substantial doubt concerning the existence of a power is resolved by the courts against the corporation, and the power is denied.”

According to the rule of strict construction, then, if a statute does not specifically grant a certain power or the power cannot be fairly implied from the stated power, the right to exercise that power is denied. This is difficult and hard language. It is difficult to imagine how a unit of government can operate effectively under such narrow interpretations of the law. But the rule of strict construction does flow logically from the principle that local governments have no implied or inherent powers. That, of course, makes counties very different from state or national governments which derive their powers from their respective constitutions and the people. They also differ from city governments, not because cities have inherent governing powers, but because Michigan’s grant of home rule to cities is broad and widely used. The 1908 Michigan Constitution granted home rule powers to the state’s cities and villages.”

But the story doesn’t end there, VerBurg goes on to talk about contemporary construction, a broader interpretation of local government’s powers.

“Why should something a judge in Iowa decided more than one hundred years ago still govern us today? Part of the answer is that the U.S. Supreme Court upheld the principle several times since Dillon wrote his decision. Moreover, the Michigan Supreme Court has sometimes upheld it as well. The other part of the answer is that the principle is gradually, but only gradually, becoming less important than it once was. Michigan’s 1963 constitution has helped a little, stating that the laws and legal provisions applicable to local units “shall be liberally construed in their favor” and that “the powers granted to counties and townships by this constitution and by law shall include those fairly implied and not prohibited by this constitution.”

Has this provision made a difference? We still see some court decisions and state attorney general opinions that sound a great deal like what Dillon might have written. That is, the rulings often seem not to go very far beyond what a statute specifically states. On the other hand, we cannot say how many decisions have gone in favor of the counties because of the clause. It is probable that judges and lawyers do not apply Dillon’s Rule with the vigor they once did. But the liberal construction clause does not mean that a court will uphold counties when they “define” their own powers. Counties must still depend on the state constitution and the state legislature to define what they may and may not do. This is likely most dramatically seen in a county’s very limited (almost none) power to adopt general police power ordinances. The article County government powers are very limited has more about this.

Watch for future Michigan State University Extension articles with more information about county government. Professor VerBurg’s book, Guide to Michigan County Government, Fourth Edition, is available in electronic form online on a CD or a USB drive with nearly 500 pages of detailed information about county government, with extensive footnotes to constitutional and statutory information. The update process is underway to be sure the information and statutory notations are current, with rollout of the Fifth Edition expected in fall 2016.

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