April 29, 1994
Ms. XXXXX X. XXXXXX, Clerk
XXXXXX County Road Commission
3536 XXXX US-XX
XXXXXX, Michigan XXXXX
Dear Ms XXXXXX:
In your letter of April 21, 1994, you ask what are the requirements for
paying 50% of the county-at-large drain assessments from county road funds and
who computes the assessment.
The authority for paying 50% of the drainage benefits to county roads was
granted by PA 327 of 1972, that added section 14a to PA
51 of 1951. (MCL 247.664a) Prior to Act 327 of 1972, the assessment for
drainage benefits to county roads was paid from the county general fund. The use
of county road funds for paying the drainage assessments was prohibited as
stated in the following Opinions of the Attorney General:
| Opinion Number |
Year |
Page |
| |
| 4247 |
1963-64 |
253 |
| 1577 |
1952-54 |
35 |
| 0-3142 |
1945-46 |
251 |
| 0-1537 |
1943-44 |
581 |
| -------- |
1926-28 |
636 |
Excerpts from PA 327 of 1972 that authorizes the use of county road funds
are:
Expenditures of county road commission funds to pay the cost of drain
assessments under Public
Act 40 of 1956 imposed after the effective date of rules promulgated
under this section, shall be made only if all apportionments of benefits
of any nature or kind determined or made for the drainage of county roads or
state highways are made in accordance with rules jointly promulgated by the
department of state highways and the department of agriculture.
Fifty percent of the cost of a drain assessment against the county for
the drainage of county roads shall be paid by the county road commission
from county road funds.
Section 151 of the Drain Code, PA 40 of 1956 (MCL 280.151) was not amended
and reads in part:
Such percent so apportioned when finally approved shall be assessed against
such townships, cities and villages and against the county-at-large by
reason of the improvements of the highways within the drainage district.
Our reading of these statutory sections and the Opinions of the Attorney General
indicates that the drainage benefit to county roads remains against the county.
However, assessments issued after the rules were promulgated by the department
of state highway and the department of agriculture and only when the
assessments were computed in accordance with the promulgated rules may fifty
percent be paid from county road funds.
A careful reading of PA 327 of 1972 that specifies that road funds may be
expended only if all apportionments of benefits of any nature or kind determined
or made for the drainage of county roads are made in accordance with rules
jointly promulgated would indicate that road funds may be expended only if the
assessment to the county was computed in accordance with the promulgated rules.
Representatives from the Michigan Department of Transportation (MDOT) state that
is not a true meaning of the statute. They believe and authorize the expenditure
of 50% of the cost from county road funds for 50% of the benefit computed in
compliance with the promulgated rules. This is true even when the assessment
against the county for benefits to county roads exceeds the benefits computed
within the guidelines of the promulgated rules.
To illustrate: The drain commissioner assessed the county $100,000 for the
benefit to county roads. A verification of the computation of benefits using the
guidelines of the promulgated rules indicates benefits to county roads at
$90,000. MDOT will allow an expenditure of $45,000 from county road funds. (50%
of $90,000) They will not allow an expenditure of 50% of the $100,000.
It is our belief that the county drain commissioner shall compute the
assessment that must be verified by the road commission prior to the day of
review of the percent of drain benefits and the payment of 50% from the county
road fund.
Public Act 327 of 1972 and Rule R 280.4 (3) requires the notification of and
the assessment be pursuant to PA 40 of 1956. (Drain Code--MCL 280.1 et seq.)
Section 151 of the Drain Code, MCL 280.151 states in part:
He (drain commissioner) shall apportion the percent of the cost of
construction of such drain which any highway then under the control of the
county or district road commissioners, shall be liable to pay by reason of
benefits therefore, and as the means of improving such highway.
Authorizing or requiring any person, including governmental agencies, to compute
his or her assessment, we believe, would be a violation of the Drain Code and
that person assuming the duties of the drain commissioner.
This memo addresses our views in answering your question. As our office is
not authorized to issue legal opinions, we recommend you consult your legal
counsel if a legal interpretation or opinion is needed.
If we may be of further assistance, call (517) 373-3227 or write our office
at Michigan Department of Treasury, Local Audit and Finance Division, P.O. Box
30728, Lansing, Michigan 48909-8228.
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