Montana Attorney General Opinion 15-175

Opinion No. 175 Officers-- Salaries- Public Policy- County Conmlissioncrs- Claims- Jus- ticoes of the Peaoo-Fees. HELD: An agreement of a public officer to accept less than the salary allowe(l by law is contrary to public policy alHI \·oid. "'hether the officcr !Uay recover the unpnid part of his ;mlnry-not decided. Under the facts presented, the Board of County Commissioners did not ex- ceed its powers in allowing an expense clnim of nine dollars presented by one (lirected bv the Board to attend a meet- ing of the Federal Power Commission to protect the intere;;ts of the County. .Justice of the Peace may charge only those fees which are set forth in the statutes. April 21, 1933. You inquired ahout the propriety, or otherwise, of a public officer accept- ing or agreeing to accept less than the salary allowed him hy law. The rule is well settled that an agreement of such a character is contrary to public policy and void. The compensation having been fixed by statute can only be changed by statute. (Hicks v. Still- water County, 84 :Mont. 38; Mechem. Public Officers, Sections 372, 377; 1::1 _C. J .. 441,442, and Supps.) We do not wish to be understood, however, as say- ing that in any e\'ent and under all cil'cumstances the officer may reCO\'er the unpaid part of his salary, for, it seems, there are exceptions to nearly all rules. (See Boyle v. Ogden City, (;8 Pac. 153; Haryey v. Tama County, 1)1:1 Iowa 228; Mechem, Public Officers, Section 372; Opinion No. 110, this vol.) It appears further from your letter that one W. F. Jellison, a competent man presumably, was authorized and dit:ected by the board of county com- missioners of Flathead County to at- tend a meeting of the Federal Power ·Commission held at Polson for the pur- pose of conSidering power sites, dams. etc., and received from the county his expenses amounting to about nine dol- lars. The circumstances requiring his presence at the meeting were that the county has and had a large amount of money invested in roads in what is known as the Lower Valley and that if the Montana Power Company, or one of its subsidiaries, were permitted to dam the waters in that \icinity to a certain height there would be danger of flooding these roads. We think the allowance and payment of Mr. Jelli- son's claim was, under the facts as stated, proper, and particularly so as the duty of attending the meeting was not cast by law on the county suryeyor or any other officer. (See Judith Basin Co. v. Livingston, 8D Mont. 438). The board of county commissioners of a county is vested with and possess- es just such powers as the statutes con- fer upon it and such as are necessari- ly implied to enable it to carry out the objects and purposes of its creation. In general, the board is charged with the duty of managing the affairs and business of the coullty and of making contracts necessary and incident to such management. (7 R. C. L. 938, 943). Except as otherwise provided by law, a board of county commissioners or- dinarily exercises the corporate powers of the county. It is in an enlarged sense the representative and guardian of the county, having the management and control of its property and finan- cial interests, and having original and exclusi\'e jurisdiction O\'er all matters pertaining to county affairs. Within the scope of its powers, it is supreme, and its acts are the acts of the county. It is well settled, however, that a coun- ty hoard possesses and can exercise such powers, and such powers only, as are expressly conferred on it by the Constitution and statutes of the state, or such powers as arise by necessary implication from those expressly grant- ed, or such as are requisite to the per- formance of the duties which are im- posed on it by law. (Arnold Y. Custer County, 8a Mont. 130; State v. Kuhr, 86 Mont. 377; Simpson v. S'ilver Bow County, 87 Mont. 83; 15 C. J. 456-458). The Board of County Commissioners is in a sense the general business agent of the county, and as such has charge 126 OPINIONS OF THE ATTORNEY GENERAL of its financial affairs and business as to such matters as are not expressly or hy necessary implication delegated by law to other officers of the county or as are not reserved to the people. (State ex reI. Coleman v. Fry, 95 Pac. 3!l2) . In the State Examiner's report cov- ering the affairs of Flathead County appears the following paragraph: "Claim No. 82181 of .Justice of the Peace McCarthy was paid in the amount of $23.50, though approved by the county attorney in the amount of $16.00. We are unable to determine the correctness or incorrectness of this claim, but most certainly some one is wrong in the matter." You comment and elaborate on it in this language: "The examiner's report covers claim 82181 of Justice of the Peace McCar- thy. I filed before McCarthy a com- plaint charging four defendants joint- ly with burglary. Two were dis- missed without a hearing and two were bound over without a hearing. McCarthy put in a claim for $10.00. I cut it to $2.50. The examiner states that he is unable to determine the correctness or incorrectness of the claim", and then inquire of us if we can deter- mine the correctness of the claim for the examiner. At first blush the thing looked very much like a Chinese puzzle, but we may assume, in order to hring about some measure of reconciliation between the figures given, that the ven· erable jurist rendered public service, other than that mentioned, for which he claimed compensation in addition to the Ten Dollar charge. If we adopt that theory it is reasonably certain that your position was correct and that he should have had not $23.50 but only $16.00. (Section 4926 ReYised Codes W21; State ex reI. Rowe v. District Court, 44 Mont. 318; State ex reI. Rowe v. District Court, 45 Mont. 205; 46 C. J. 1017, 1018; Brannin v. Sweet Grass Co., 88 Mont. 412).