Montana Attorney General Opinion 16-115

Opinion No. 115. Fairs-County Fairs-Fair Commis- sion, Powers of-Term of Office -County Commissioners. HELD: 1. The county fair commis- sion has the power to use the county fair grounds without the sanction and approval of the board of county com- missioners. 2. Members of the county fair com- mission, whose terms expire, hold over until their successors have qualified. 3. Members of the county fair com- mission may only be removed from office, by the county commissioners, for cause. June 14, 1935. Board of County Commissioners Valley County Glasgow, Montana You have submitted the following questions: 1. Can the fair board operate and put on a fair, using the County Fair grounds without the sanction and approval of the County Commis- sioners? Section 4546, Revised Codes 1921, provides: "Said commission shall do all things necessary to hold a success- ful county agricultural fair in their respective counties, and shall have charge of all fair grounds and fair property." Section 2 of Chapter 52, Laws of 1935, also provides: "Said County Fair Commission shall have control and operation of the fair and the super- vision and management of the fair grounds and also the leasing of build- ings and fair grounds and shall return to the fair fund of the county all rev- enue obtained from the leasing or renting of the same." In view of these sections it is my opinion that the Fair Commission has the power to use the county fair grounds without the sanction and ap- proval of the Board of County Com- missioners. 2. The terms of two members of the fair board have expired and they have not been reappointed or any appointment or action taken on the vacancies. What would be your ad- vice on this matter? By Section 4545, Revised Codes 1921, it is the duty of the Board of Com- missioners to make appointments to the Fair Commission at the regular meeting in December each year. Fail- ing to do this, the members whose terms expire hold over until their suc- cessors have qualified. (Sec. 423, Re- vised Codes, 1921; Vol. 12 Official Opinions of Attorney General, page 116.) See also 46 C. J. 968, Section 110, where it is stated that the general 116 OPINIONS OF THE ATTORNEY GENERAL trend of decisions is to the effect that a public officer holds over until his successor qualifies even in the absence of a statute. 3. Can the Commissioners dis- charge the entire Fair Board of the . County or in any way terminate the Fair Board? Section 4545, Revised Codes, as amended by Chapter 3D, Laws of 1927, provides for the appointment by the County Commissioners of a County Fair Commission, the term to be for two years. There is no provision for their removal. In State ex reI. Nagle v. Sullivan et ai., 98 Mont. 425, our Supreme Court said, page 438: "The power to appoint carries with it, as an incident, in the absence of consti- tutional or statutory restraint, the power to remove (Touart v. State, 173 Ala. 453, 56 So. 211; Cameron v. Parker, 2 Oklo 277, 38 Pac. 14; Spon- ogle V. Curnow, 136 Cal. 580, 69 Pac. 255; Sanders V. Belue, 67 S. C. 171, 38 S. E. 762), but provision for ap- pointment for 1!- fixed term consti- tutes such restraint, and, in the ab- sence of any provision for summary removal, one appointed for a fixed term can be removed only for cause. (23 Am. & Eng. Ency. of Law 437, and cases cited from many jurisdic- tions.) .. Since the Fair Commission mem- bers are appointed for a fixed term and there is no statute providing for their removal, they can only be re- moved for cause. As to liability for the deficit, your question is general and not all of the facts are SUbmitted. I call your atten- tion, however, to the Budget Act found in Chapter 148, Laws of 1929, and particularly to paragraph 3 of Section 5 thereof. In general it is my opinion that the County is not liable for expenditures in excess of the budget or appropriation.