Montana Attorney General Opinion 15-76

Opinion No. 76 County Commissionel's-Indigent Sick -Tonsil Operations-Count,y SUl-veyOl' -Incompatible Offices-County Road Crews. HELD: Because of the very natUl'e of the work, the county COlIlmission is left with a great deal of discretion as to \\11at mayor may not be done for the indigent sick. And, generally it might be said, that they may 1I0 what- ever is reasonable in the ma ttE'r of fur- nishing medical or surgical attendance. A II the l)()werS of a county surveyor and all the rights in regard to compen- OP1:\"IO:\"S OF THI;; A'lvrUH:\"EY GE:\"ERAL ~;ation nlHl time of emplo~'ment in eounties hn\"in~ a less yotin~ popula- tion tha n 15.000 a I'e set ou tin the H. C. M. H)21 , Hnd arc placerl under the eontrol an(l super"ision of the board of eount,- commissioners whieh is au- thorized'to act at discretion. A member of the board of county eommissioners has no legal power to do anything more than make an inspec- tion of the work that is done b~- oth('r. eounty officials 01' employees on the highways and bridg-es and assuming the duties. and drawing the eompensa- tion of a foreman by a member of the board is not authori:r,ed by law. FebruHr~' 10, 1933. "'e acknowledge receipt of yours of ,Tanuar~' 2.'5, requesting an opinion fl'om this office on the following mat- tel's: "I. Has the boal'll of eountv com- missioners power to exp('ll(l any mon- eys in ,the poor fund for the purpose of operating on the county poor that are Hfflicted with tonsil trouhle? "2. What compensHtion shall be al- lowed a surveyor in counties in 1\[on- tana with a voting populHtion of less tha n 15,OOO? "3. "\VIHl't l)()\\'er has the county SUI'- yeyol' in counties that have a less "ot- ing population than 15.000 to emplor help or assistance without permission of t.he boa I'd of county cOlllmissioners'! ';4. Ma~' a member of the boanl of count~- commissioners act as foreman O\'er road crews in general road work in the county in the district a,ssiglled to 'the particular commissioner? 1. The following sections of our :-;tatutes contain the proviSions rela- til'e to the power of l)()ards of county commissioners to supervise a nd look after the poor: Section 4521 H. C. 1\1. l!):!1 reads as follows: "The board of count" COIl1- missioners are vested with enti're and exclusil'e superintell'dence of the poor." Section 4527 R. C. )1. 1!)21 as amend- ed by Chapter 55, J~aws of H)27, is as follows: "The board must annually, at their December meeting. make a contract with some resident pl'llctising physician to furnish medical attend- ance to the inma tes of the county jail. and mu"t also make l)rO\'ision for the flll'l1i"hnig- of medicine to the same: provided, howe,'er, that the boa I'd mar let such contract for the furn\"hing' of medical attendHI1CC to the physician ap- pointed hr such board a!'; count~' h('alth officer. and may fix a salary or other rate of compensation to he paid to such county heaUh officer for the fumishin~ of such medical attendance, which sal- aI'.\' or other compensation !'hall he in addition to the salary of such physi- cian as county health offiC(>r." There are various other sections of chapter 12 of part IV of the Political Corles (1!)21), find amendments there- to. that relfi'te to other matteI'S con- cerning the poor hut the two sections quoted aho,e are those most material relath'e to the pO\vers Hnd duties of the hoards of county commissioners, Because of the yer~' nature of the work, ,the county cOlllmissioners are left with great discretion as to what ma~' or may not he rlone for the in- digent sick. Anrl, ~enerall~', it might he said tha t the~' may rio wha te,'er i~ reasonable in the matter of furnishing medical or surgical attendance, 'Ve are not prepared to as"Sert posi- tively. howe\,er, that the relllO\'al of the tonsils of several hundred ehildr('n in a county the size of rour COUlTt~·, is I'ensonahle. 'Ve think also that the county is authorized to fUl'lli!'h medical a ttenda ncc, except in case of great" PllIerg'enc-", only to the inrli~ellt sick. "~e do not mean to sa~' thn t we ques- tion the power of the hoard of county ('olllmissioners to pay for an opemtio;] upon fill indigent person where the op- era tion is imme(liately necessary, The ])()arrl likewise has a great breadth of discretion in determining whether such an operation is immediately necessary, It is not the prodnce of this office to addse you to advise yonr board of r'0l1l1ty commissioners exactly how the.v shou\(] exercise their discI'etion hut if the writer were a member of the board of county eOll1missioners in this illstlll1ee, he would move slowly in au- thorizing n wholesale removal of ton- siL,>. 2. The duties and powers of eounty slll'\'eyors are go"el'l1ed by the follow, ing sections of our statutes: Seetion 4836 H, C, )1. 11)21 pl'o,ides as follows: 64 OPIXIONS OF 'i'HE A'l"l'OlL",EY GE~ERAL "The county surveyor shall work under the direction of the board of euunty cOlllmis;,iuners, but shall IUl\'e no power or authority to incur any indebtedness on the pa rt of the coun, ty without the order or apPl-oval of the board of county connnissioners being first obtained therefor; he shall make all surveys, establish all grades, prepare plans, specifications, and esti, mates; he sha,ll report any delin- quency or inefficiency of any road o\'erseer or other person employed upon the roads within his county; he ~hall, from time to time, make prog- ress reports and estimates of all work, and sueh other facts in relation there- tu as may be required by the state highwa~' cOlllmis::;ion. hoard of county commissioners, or both." Section 4838 H. C. ~L 1921 reads as fullows: "The county sUITeyor shall be pro- vided with ~uita hie office, together with lIecessar~' equipment, to perform his various duties as prescribed by Ja\y." Section 4843 R. C, M. 1921 reads as follows: "If a party for whom the county survey is made does not fUrnish the chainman I:nd markers, the surveyor may employ the necessary chainmen and markers, and reeeh'e the reason- able hire of all assistants necessarily employed." Section 4845 H. C, ~I. 1921 pro\'ides as follows: "The county ::;UlTeyor shall al:;o, at the direction of the county commis- sioners, direct and inspect the work amI expenditures of the road super- visors; also furnrsh plans and speci, fications for road or bridge work, and he shall be chairman of all boards of l-oad viewers," All ,the powers of a county sUr\'eyor and all the rights in regard to compen, sa tion and time of employment in eonnties that have a less voting popula- tion than 15,000, are set out in the fore- going statutes, and are placed under the control and supervision of the board of county commissioners who are authorized to act at discretion, 3, This question is fully co\'ered by sections 4836 and 4843 as set out above, 4, The only power that a member of the board of count\' eommissioners ha~ under our statutes' to inspect highways or do anything else in eonnection there- with and receive compensation for it, is· set out in section 1632 R, C, ?II. 1921, as amended by Chapter 176, Laws of 1929. From this section you "ill see that a member of the board has no power under the statute to do anything more than make an inspection of the work that is done by other county officials or employees on the highways or hridl-res: and assuminl-r the duties. and (Ira wing the cOlupen~ation of a fore- man h~' a member of the board, is not authorized by this statute.