Montana Attorney General Opinion 15-336

Opinion No. 336 Count.y Conunissioners--Inigation Projects--Engineer-National Industrial Recovery Act. HELD: County commissioners ha"e no power to retain an irrigation en- gineer for the purpose of making a preliminary sm'vey of a proposed irri- gation district to be financed bv the Federal GO\'ernment under the National I ndustrilll Hecovery Act. September 14, 1933. You have requested my opinion "whether or not the county commis- sioners of Custer County hll ,:e the pow- er. under the provisions of Chapter 44 of the I.Al ws of 1933, to retain an irri- gation engineer for the purpose of making a preliminary survey and se- curing data for the construction of an in;gation project in G'1.lster County with public works funds." It is, of course, conceded and recog- nized hy all authorities that the county commissioners hllve only such powers as have been expressly granted to them by the legisillture or which may rea- sonllbly be implied from the duties placed upon them. No express power has been granted by the legislature to employ an engineer, or any other per- :<on, for the purpose of making' prelim- inllry surveys lind securing data in the constrnction of an irrigation project. which the government requires in or- der to determine whether the project is feasible and should he undertaken under the public works program of the Xa tional Industrial HecO\-ery Act. The commissioners are charged with no duty by statute to construct, or help construct irrigation projects and hence there can be no implied power to em- plo)' an engineer for that purpose. Chapter 44 was IIpproved by the gov- t'l"lIor and became effective on March 4, 1933, befOl'C the passage of the Na- tional Inciustl;al Hecoyery Act. Con- ceding, without deCiding, that that act may be legislation similar in some re- svects to the Heconstruction Finance Corporation, although the aid insofllr as it pertains to its program of public works, is of a different character, the purpose of Chapter 44 as expressed in its ti tle, as well as in Section 1, is to gh'e the county commissioners power to "employ the necessary help and in- ("ur such expenses as are necessary in the administration of such relief." It is not absolutely certain that aid ,,;Il be granted under the N. I. R. A., for if it wel'e cer.tain, there would lJe no need for securing the services of an engineer to make a preliminary survey and Be- eure datil. Before relief has been grant- ed or detel1llined upon there can be no 228 OPINIONS OF THE ATTOR:\,EY GEKERAL administration of such relief, and the employment of help and the incurring of expenses in the administration there- of, is not necessary. The relief received from the Reconstruction Finance Cor- poration consisted of funds, for the proper distribution of which it was nec- essary to employ help and incur ex- penses. It is my opinion that it was the in- tention of the legislature to give the county commissioners power in said Chapter 44 to employ help and incur expenses in administering- relief 'after such relief had been obtained and that they have no power under such act to employ help or incur expenses in order to convince the }j'edera I Government that the proposed public work is feas- ible and should be undertaken. You enclose a letter signed by mem- bers of the local unemplo~'ment com- mittee, calling- attention to the benefits to be derived from the proposed irri- gation project, as well as the expected resulting relief for the uncmployed of the county who are now receiVing- re- lief from the county and the Federal Go\·ernment. The argument made is in- deed forceful and were I vested with the power of discretion, I should un- doubtedly be moved to act accordingly. ~Iy sworn dut~' is, however. to uphold the law and to construe it honestly. fearlessly and correctly, having in mind that the powers of the county commis- sioners throughout the state should not be enlarged by judicial construction, however desirable in the present emer- gency, as that is properly the function of the legislature. S'ee Sullivan v. Big HO.rn Co., 66 Mont. 45.