Montana Attorney General Opinion 16-336

Opinion No. 336. County Commissioners-Irrigation Projects-WPA Projects. HELD: County Commissioners have no power to expend county money in whole or in part for the purpose of 334 OPINIONS OF THE ATTORNEY GENERAL constructing, owning and operating small dams and reservoirs for con- serving flood waters and furnishing stock water for farmers and stock- men within their counties. Mr. C. F. Holt County Attorney Great Falls, Montana August 5, 1936. You have submitted the questioll whether the boards of county commis· sioners may legally expend money in whole or in part for the purpose of constructing, owning and operating sinall dams and reservoirs for con- serving flood waters and furnishing stock water for farmers and stock- men within their counties. The Chief Engineer of District No. 3 of the Works Progress Administra- tion advises that the Federal Works Progress Administration is in a posi- tion to furnish federal aid in the form of relief labor and part of the equip- ment, if necessary. You advise that the expenditures of the counties would be largely for land acquisition (the regulations of the Works Progress Administration require that projects shall be constructed on public prop- erty only), for materials such as fenc- ing and concrete aggregate, equip- ment in the form of trucks and teams, and engineering expense for survey and design. You are unable to give the facts in regard to each project but state that you are sure it would be for the benefit of the state. We have called your attention to our opinion dated September 14, 1933, Volume 15, p. 227, Opinions of the Attorney General, where we express the opinion that county commissioners have no power to retain an irrigation engineer for the purpose of making a preliminary survey of a proposed ir- rigation district to be financed by the Federal Government under the Na- tional Industrial Recovery Act. The views expressed therein are control- ling. We said: "It is, of course, conceded and recognized by all authorities that the county commissioners have only such powers as have been expressly granted to them by the legislature or which may reasonably be implied from the duties placed upon them. No express power has been granted by the legislature to employ an en- gineer, or any other person, for the purpose of making preliminary sur- veys and securing data in the con- struction of an irrigation project, which the government requires in order to determine whether the proj- ect is feasible and should be under- taken under the public works pro- gram of the National Industrial Re- covery 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 employ an engineer for that purpose." The same may be said of the pro- posed expenditures. If the result, "benefit to the state", or county, be the test of power of the board of county commissioners, their power would be boundless and the taxpayers' money could be used for endless enter- prises. The legislature has not seen fit to confer such sweeping power upon the board of county commis- sioners. Whether or not the expenditure of such money in a given case is a legiti- mate expenditure for the relief of the poor for whom the board of county commissioners have a duty to provide, is a question on which we . express no opinion because no facts are stated. We call attention to the following opinions of this office in Volume 15, Opinions of the Attorney General: No. 378, p. 261; No. 423, p. 292; No. 439, p. 304; No. 502, p. 343; No. 583, p. 404, compare No. 581, p. 403. From the principles therein stated, the county commissioners no doubt can determine whether the expendi- ture for such purposes is within the limits of legitimate expenditures for the poor.