Montana Attorney General Opinion 15-29

Opinion No. 29 County Commissioners-WOJ'thless Accounts-Counties, HELD: The boanl of county conunis- sioners has the vower to charge off wOl'thless accounts. January 17, 1f)1m. Yml ha"e rCt]uested my opinion on the following matter: "There are a large number of counties in :\iontana that haye been carrying for some time as cash, the amount of deposits in OPINIONS OF THE ATTORNEY GENERAL 33 closed banks in which there is no pos- sibility of recovery from the assets of the bank or from the bondsmen. These assets as carried are fictitious and should be charged off. In many cases the receh'ers of the bnnks ha,'e been discharged and there is no hope what- ever of further collections. Will ,ou kindly advise us if the county comI~is­ sioners have nuthority to chnrge off these items or such other method and regulation which they may prescribe. ur is this a matter that the COUlltv com- missiuners cannut regulate and ·"ill it require a oill to oe passed by the le!,,'i.8- lature?" Section 4-141 H. C. :\1. 1921 pnn'ides as follows: "Every county is a body p()litic and corporate, and as such has the power svecified ill this code, or in special statutes, and such powers as are necessarily implied from those ex- pressed." Section 4-142 provides: "Its powers can only be exercis€d by the board of county commissioners, or by agents, and officers acting under their author- ity, or authority of law." Section 4444 proyides: * • • "4. To make such orders for the disposition or use of its property as the interests of its inhahitants require ... * *." Section 4465 H. C. l\1. 11)21 as amend- ed by Chapter 1)5, Laws of 11)27 and Chapter 38, Laws of lH2\). among other general and permanent powers granted to the board of county commissioners, sets forth the following: "22. To repre- sent the county, and ha"c the care of the county propel·ty, and the managc- ment of the business and concerns of the county in all cases where no other provision is made by law." "25. To per- form all other acts nnd things required oy law not in this title enumerated, or which may be necessary to the full dis- charge of the duties of the chief execu- tive Iluthority uf the eounty govern- ment." In view of the foreg-oing express powers gl"en to the county nnd the county eommissioners, we are of the opinion that tIll' cOllnty commissioners ha"e the power to charge off fictitious or worthless accounts and tha t no ac- tion by the legislature is required to accomplish this purpose. Such action does not in nHy way af- fect the debt due fl'om the closed banks nOI' the relation of the parties as debtor nnd creditor. Sucll action as mny be necessnry, effecth'e or ad,isnble to col- lect the debt may still be taken. No rights of the county are in any wa~' wRived. The contemplated action mere- ly concerns the bookkeeping of such 'llceounts and is the natural aetioll whieh nllY business eoncern would take ill regard to a claim which wns eOIl- sidered to be worthless. The county commissioners being charged with the care of the county property and the mallagement and business coneerns of the eounty and being the chief execu- tive authority should, and we belie"c du have the power to eharge off worth, less aceounts and to have the records of the county express the true condition or status of the county assets. As to the duty to restore trust funds, if any are included in the deposits of closed banks, our Supreme Court has ruled thereon in. S'tate ex reI. School District No.4, Rosehud County vs. Mc- Graw, 74 Mont. 152, 240 Pac. 812. Xeither that duty, the ability to dis- charge ,it nor the advisnbilHy of dis- charg-ing it are in any wa~' affected hy the action of the (:oUllty cOlllm1s- sioners in charging off a worthless HC- eount.