Montana Attorney General Opinion 15-68

Opinion No. 68 County COlluuissionel'S-Right of Way -Condemnation-Jail, Pm'chase of- Budget Law. HEJ~D: ·When the Board of County Commissioners purchases any land for any purpose it must first he appraised by three disinterested pel'sons. and the provision of the statute is mandatory upon the Board of County Commission- ers in purchasing- a right-of-\\'a~' for hig-hway purposes. 'l'he Board of Count~' ComlllissionerH has no legal power to purchase a jail and improve the same and expend county funds for that purpose in ex- cess of the hudg-et previonsly adopted and by their ultra \'ires act in so do- ing the members of said board have become Hable for the penalty provided by the hudget law. February 8, H)3B. You request an opinion npon the fol- lowing matters: 1. 'Vha t is your opinion ahout the duty of the BOal'a of Count~' Conllnis- sioners having the rig-ht to Imrc-haf'C a right of way for hi:.:hway IlIlr1)oses without firf't appoint,ing appraisers to place the Yalua'tion on the land pur- chased? 2. Has the Board of County Com- missioners the power to purchase a jail and improve the same and expend county funds for that purpose in ex- cess of the budget pre,iously adopted? Replying to question number 1, the Board of County Commissioners is g-ov- erned and controlled ,by section 4465. R. C. ;\1. 1021, as amended h~· chapter 100, subtlil'ision 8, Laws of 10m. C~ote: Amended by Ch. 74, Laws of 193.3. to exclude purchases of real estate under ~100 in I'alue.) and the provisions of that section are that when the Board of Count~' Commissioners purchases any land for any purpose it must first be appraised by three disinterested persons and the prol'isioll of the statute is man- datory upon the Board of County Com- OPIX!Oi\'S OF THB ATTORXEY GEXERAL 55 missioners in purchasing a light of way for highway purposes. Question numher 2. To gh'e you a sa tisfactory opinion on this question, in order that your board may extricate itself from the pOsition it is in without injury to the county for the money al- ready expended, is a difficult one. The first paragraph of section 5 of chapter 148, Laws of 1929, the same ,being part. of the budget act, provides in part as follows: "The estimates of expenditures, itemized and classified as required in section 2 hereof, and as finally fixed and adopted by said board of county commissioners, shaH constitute the appropriations for the county for the fiscal year intended to be covered thereby, and the county commission- ers, and every other county official. shall he limited in the making of ex- penditures or incuning of liabilities to the amount of such det.'liled appro- priations and classifications, respec- tively;" The last paragraph of the same sec- tion prod des in part as follows: "Expenditures made, liabilities in- cUlTed, or warrants issued, in excess of any of the budget detailed appro· pria tions as originally determined, or as thereafter revised by transfer. as herein prodded, shall not he a liabil- ity of the county, but the official making or incurring of such expendi- ture or issuing such warrant shall be liable therefor personally and upon his official bond. * * * " That part of section 6 of the same act ,that hegins with the word "upon" on page 294 of the Session Laws enum- erates extreme cases in which the board of County Commissioners are authori7-ed to exceed the amounts as fixed ,by the budget but it is very doubtful if any of the provisions of this part of the budget law would au- tholize expenditures to which you re- fer. Not only is there no provision in the law that specifically authorizes such expenditures as you report bu t the emergency must be anticipated and provided for in the manner the statute sets out before the expenditure is made. After the expenditure is made we can find no authority fOl' brinl,ring the emergence clause of the law into lllay to justify such expenuiture. If the Board desired to attempt to provide for an expenditure authori7-e(1 as an emergency it. would have been neees- sary for them to follow the procedure as outlined in the statute. }i'rom the facts as you ha\'e stated them we ean find no provision in the hurlget law that authOlized the Board to take any action to justify their ('x- penditures for the jail and the iUl- prOn!lllCnts thereon. We find nothing in the transactions 1hat ha \'e been car- I-ied out that would indicate that there was anything suggesting bad faith or fraud but it is a simple case of violat- ing the budget law and no provision made to remedy the violation and we are unable ,to give you any advice as to how to meet such a situation liS it is our function to arl"ise as to what we think the law is and not how the viola- tion of it can be remedied when ]]0 remedy is provided. "re do not suggest that any action he taken by which the county will suffer a loss but it is clearly the opinion of this office that the officials have he- come liable for the pena Ity provided in the Ilecond paragl'llph of the budget law recited above. . You will notice by section 8 on page 2!)6, Laws of 1929, being a part of the same act referred to as ,the budget act. that the st.'lte examiner is gmntell rather extensive powers in making rules and regulations to carry the bud- get law into effect and a conference or consulta,tion with him might enable .I'OU to arrive at some satisfactory con· clusion of the matter. Opinion No, 69 Fish and Game--Justice Comis-Fol'- feitm'es--Seal'Ch Wan'llnts, HELD: A justice court, being a court of limited jurisdiction ali(I hav- ing only such as is pro\"rded by statu1e. it is doubtful whether it would have jUl'i::;diction of a case where a forfei- ture was imposed; in all such cases the distlict court is the proper court in which to proceed. The issuance of a search warrant for the purpose of disco\'ering game pos- sessed in violation of the laws, or show- ing evidence of illegal taking. is au- thorized by section 3G5!), R C. M. 1921.