Montana Attorney General Opinion 15-73

Opinion No. 73 Countioes - Budget - County Q}mmis- sionel·s-.:()fficel's-Civil am1 Criminal Liability - Indebtedness - Expendi- hires-Constitutional Law. HELD: County commissioners and of- ficers violating budget act, Chapter ]48, IM'l\ .... s 1929, and their bondsmen. are liable in civil action and official!' a Iii() liable in criminal action. Expenditure of $11,100 for three cat- erpillar rond patrols, raises serious question of violation of Article XIII, Section 5 and Section 4447 forbidding incurring indebtedness of liability for single pUI1)()se in exc-ess of $10.000.00. February 10, 1933. You ha\'e requested my opinion on the following questions: "1. Does the above claim (based upon ,the sale of three Caterpillfl l' Auto Patrols for $11,100) come within the provisions of section 4447 R. C. l\L 1921? "2. Would the fact that three Cat- el'pillars were purchased at $3S.'iO.OO each make the transaction comply with the law? "3. 'Wiould ·the county eommission- el's be liable on their official bonds for the amount in excess of the $10,- 000 limit? "4. Since the invoice is dated No- ,"ember 16, 1931, and the claim is filed July 27, 1932, approved August 1, 1932, and the budget for 1931-1932 did not provide for this claim, is not this in yiolation of the prOvision of chapter 148, Laws of 1929? "5. If this is a violation. is the claim a liability against the county? "6. Are the county commissioners and their bondsmen in any way finan- dally responsible in the abo\'e tran·s- actiop ?" The above mentioned tranSllction is fOt· the purchase of three Caterpillar Auto Patrols with twelve foot blade, lighting equipment, canopy top, scari- fier a ttachment, glazed enclosed call, front V snow plow, each costing $3850.00, less an aggregate for three fl'Ont V snow plows amounting to $450.00, leaving a net cost of $l1,ioo. We will take up the last three ques- tions first. Based upon the statement of facts contained in your question Number 4, it is our opinion that the pro"isions of chapter 148, La ws of 1920. have been violated. This purchase was made subsequent to the forming of the hudget for the fisca'l year of IH31-1932 and therefore could not have been pro- yide<l fot' in that budget. It is appar- 60 OPINIONS OF THE ATTORNEY GENERAL ent from a reading of the last para- graph of section 5 of said chapter that the expenditure 01' liability being in excess of the budget and not pro\-ided for in the budget, the warrants al- though issued, are not a liability of the county 'and the party tak-ing such war- rants does not acquire any present or future claim against the county by reason of their issuance. Even if the hudget had provided for such expendi- ture, the claim was not presented with- in the 30 day extension provided for in section 6 of said chapter and the al- lowance of ,the claim and the issuance of the warrants after the 30 day peri- od would be a violation of section 6 of said act. It will be noted from the last paragraph of section 5 that the civil liabi<lity of the officers and their sureties is fourfold the amount of the claim or warrant. That part of section 5 hereinbefore noted sets forth the civil liability of the officers and their hondsmen. Sec- t.ion 10 of said act pro\-ides for a cr.im- inal liability in the following language: "Any person violating any of the pro- visions of this act shall be guHty of n misdemeanor" . Your question Number 1 presents a more difficult problem. Section 4447, R. C. M. 1!)21, is the "ame as section 5 of nrticle XI II of the eonstitution, which provides: ... * 1\'0 county shall incur any indebt- edness or liability for any Single pur- pose to an amount exceeding ten thou- sand dollars ($10,000) without the ap- proval of a majority of the electors thereof, voting at an election to be pro- dded by law". We assume it to be a fact that the Caterpillar Auto Patrols are to be used in building roads and in maintaining them and in keeping ,them open for traffic during all seasons of the yea l' and that for such purpose they will be used on the entire road system of the county as occasion requires. In the case of State ex. rel. Turner \-. Patch, 64 Mont. 565, the county of Roosevelt undertook to issue fundin~ bonds to the amount of $104,000 to be exchanged for waHants which had been issued for work, labor and materials furnished in the construction, repair, improvement and maintenance of pub- lic roads and hridges of the county. The court held that. this was not a vio- lation of section 5, article XIII. of the constitution in that the warrants had not been issued for a "single purpose", which the court undertook to define on page 570, as follows: "According to appro\-ed usnge, then, the words 'single pUl"))()se' com-ey to t.he mind the idea of one object, pro- ject or 'Proposition-a unit isola ted from all others. In other words, to constitute a single purpose, the ele- ments which enter into it must be so related t.h'a t, when cOlllbined, they constitute an entity; something com- plete in itself, but separate and apart from other objects". (This definition is quoted with n])- proval in Bennett v. Pet.roleum County, et al., 87 Mont. 436; Herrin v. Erick- ~on, HO lIion t. 25H.) 'l'he court further said: "In the light of tilis construction of the language employed in our Consti- tution, H cannot be said that the com- missioners of Hoosevelt County ex- ceeded their a uthority in disposing of their county roadwork in the manner indicated. "'e do not mean to inti- mate that commissioners may, by making arbitrary or artificial dhi- sions of work whkh mnnifestl.\- con- "titutes but one project, and by il'>~u­ ing separate warrants to separate con- tractors for sevarate units thus cre- ated, e\-'ade the prohibition of the Constitution, but we do say that in no proper sense of the terms can it be held that, as applied to this roadwork, a culvert at l\iondak, a cut at Froid. a fill at Culbertson, the removal of an obstruction at Poplar, the repair of 'a defect at Wolf Point, and the leveling of the surface !l t Bainville constitute one project, 01' that war- rants severally issued for these separ- ate pieces of work represent an in- debtedness or liahility for a Single purpose, eyen though these points nre all connected by the public roads of the county". While the facts are somewhat differ- ent, we are unable to see any real dis- tinction between the building of bridges, work and labor anrl road ma- chinery when used in connection with road purposes thronghont the entire road system in the county. 'l'!Je name OPIXlOXS Ol!' THE A'l'TORKEY GENERAL 61 of the ·thing purchased is not so im- pOl·tant as its use and its relation to the entire road system in determining the purpose. If expenditures for cuts and for culverts when spread over the entire road system are not for a single purpose, on parity of reasoning it would seem that expenditures for snow plows and patrols for the entire sys- tem might not be considered as being for a single purpose. This is a border line case, however, and we have been unable to find any decision on a sim- ilar state of facts. Being a doubtful case, we do not feel ,that we should take a position sanctioning such trans- actions prior to the determination by our Supreme Court, particularly in view of our holding herein that there i;;; no valid claim against the county hecause of a violation of the budget act. Furthermore, we do not feel that we have aU of the facts necessary for a final determina tion of this question. In answer to your second question, it would seem that the fact that it was necessary to purchase three patrols at $3850.00 each would be a fact indicat- ing that they were not for a single pur- pose on the reasoning of the court in the case of Turner v. Patch, supra. 'Yhether one patrol at a cost in excess of $10,000 would be for a single pur- pose, it is not necessary to decide IlS it is a moot question. In this connec- tion we might add that our court has held that where expendHures are made for a single purpose it would not make any difference whether the purchase was made at one time or at different times. Hefferlin v. Chambers, Hi Mont. ::149; 40 Pac. 787; Turner v. Patch, supra; Jenkins v. Kewman, 39 Mont. 77, 101 Pac. 625. In view of the position we have t·ak- en in regard to the violation of the budget, de do not believe it is neces- sary to answer your third question. It occurs to us, howe\-er, that if the con- stitution and statutory limitation ap- ply to this transaction, the seller is charged with knowledge of the limita- tion of the power of the commissioners anll should 1I0t be permitted to reco\-er the excess over $10,000 from them in- dividually. KOTE: See: Nelson, et al. v .. Jack- son, et aI., 97 ~lont. 21)9.