Montana Attorney General Opinion 15-123

Opinion No. 123 Constitutional IAI.w-County Commis- sioners--Poor. HELD: Sec. 5, Art. XIII of the Con- stitution does not prohibit the incuITing of an indebtedness or a liahility in ex- cess of $10,000 for the poor by the County Commissioners without the np- pro\'ul of the electors of the county, ~iarch 22, 1938. You have submitted the following faets and question: "The county com- missioners have expendell the tax levy in the support and aid of the poor, In other words, they have depleted the poor fund which, 0[ COUt'se, includes old age penSions a nd mothers' pen"ions, In addition, they ha\'e creatpd an emer- gency in the sum of $10,000,00, which sum is almost exhausted, Can the board of coun ty commissioners crea te another emergency in the sum of $10,000,00 to he added to the emergency poor fund?" In other words, the legal question in- volved, as you have illterpreted it in the opinion you have submitted, is whether county commissioners may incur an in- debtedness or liability in excess of $10,000 for the 'poor of the c<'Junty with- out thereby violating section 5, Article XIII of the Constitution, which pro- vides: "No county shall incur any in- Ilebtedness Ot' liability for any single purpose to an amount exceeding ten thousand dollars ($10,000) without the a ppt'oval of a majority of the electors thereof, voting at an election to be pro- \'ided by law," Section 5 of Article X of the Consti- tution provides: "'l'he several counties of the state shall prodde as may be prescribed b~' law for those inhabitants, who, by reason of age, infirmity or misfortune, may have claims upon the sympathy and aid of society," Section 4465 H. C. M, 1\:121 as amended hy chapter 54, Laws of 1:127, in defin- illg the powers of the county cummis- sioners, recites in subdivision 5 thcreof: "To provide for the care and main- tenance of the indigent sick or the otherwise dependent poor of the county (I (I (I" By constitution, as well as by legis- lative enactment, thc power and duty has been placed ~pon counties to pro- vide for the poor. This question, so far as we ha\'e been able to determine, has not been directly passed upon by the supreme court. It has, howe\'et", been considered by our COUl't in connection "ith a similar question in Panchot v, Leet, 50 ~Iont. 314, 146 Pac, 927, Jus- tice Sanner in that case expressed him- self very clearly in the following lan- guage: "A dismal picture is presented of the confusion which will ensue if the ap- proval of the electors must be had every time the county proposes to ex- pend $10.000 or more; and, as an ex- ample of such confusion, it is said: 'Assuming the statement made by the press to be true that Sil\'er Bow ex- pended last year more than $100,000 on her poor, then it must he that such (>xpenditure was unlawful, unless it followed upon a vote of the people, which probably did not take place.' 'l'he only confusion suggested hy this is a confusion of thought: for it is perfectly obvious that the distribu- tion of various amounts for the relief of various indigent persons, eve n though the aggregate exceed $10,000 taken from the county poor fund, is in nowise analogous to the expenditure of a sum certain for the Single pur- pose of erecting a pulJlic huilding, The first is a distribution, founded on a duty expressly imposed, to meet an evel··present condition encountered in the regular and nOl'lnal functioning of the county; the second is :111 expendi- ture, founded on a liability for a single, occasional purPose, fOt'bidden under certain conditions." In a later case (State ex rel. Cryder- lllan Y. W"iienrich, et al. fH Mont. 3.90, 170 Pac, 942), our court had occasion to considet' the opinion expressed by Justice Salmel' in the case of Punchot v, Leet, and .Justice Sanllet· again, in discussing a similar question, said on pages 308-300: "That the illcurrill~ of an indebted- ness, whether by bonds or warrants, for the Plll'ticular object contemplated by this act is a single purpose may not be gainsaid, even though, as pointed out in Panchot v, Leet, 50 l\font. 314, 321, 146 Pac, 1)27, the aggl'egate of dis- bursements to the general POOl' cannot be so regarded." 92 OPIKIQKS OF THE ATTORKEY GENERAL TLe opllllOn of the court in Panchot \'. Leet, has been referred to in a num- ber of opinions by the Att0111ey Gen- eral. See opinion of S. C. Ford, Vol- ullle 8 Opinions of Attorne~' General. page 149, wherein the Attorney General said: "On the other hand, the expencli- ture of more than $10,000 in anyone ~'ear for the care of the county poor is not the incurring of an indebtedness or liability for a single purpose," See also Volume 6 Opinions of the Attorney Gen- eral, page 77, where D. M. Kelly, the Attorney General, recognized and quoted this opinion of the Supreme Court. There seems to be a disagreement alllong the courts in the interpretation of similar constitutional provisions, as appears from 15 C. J. p. 578, Sec. 280. It will be observed therefrom that a nUIll- bel' of courts have taken the same view as Justice Sanner. The text writer there states the law as follows: "In other jurisdictions, howe\'er, such limitations have been held to apply only to debts and liabilities voluntarily created and not to necessary county expenses or compulsory obligations." In support thereof he has cited a number of cases including Panchot v. Leet, supra. In Rauch v. Chapman, (Wash.) 48 Pac. 253, the court said: "We are constrained to rule that the constitutional limitation of county in- debtedness in section 6 of article 8 of our constitution docs not include those necessary expenditures made manda- tory in the constitution, and prodded for by the lehrislature of the state, and imposed upon the county." The Oregon Supreme Court in Grant County v. Lake County, 17 Or. 453, 21 Pac. 447, held: "Counties do not create all the debts and liabilities which they are under; ordinarily such debts and liabilities are imposed upon them by law. A county is mainly a mere agency of the state government,-a function through which the state administers its gov- ernmental affairs,-and it has but little option in the creation of debts and liabilities against it. It must pay the salaries of its officers, the ex- penses incurred in holding courts with· in and for it, and various and many other expenses the law charges upon it, and which it is powerless to pre- '·ent. Debts and liabilities ariSing out of such matters, whatever sum they Illay amount to, cannot in reason be said to ha,'e been created in viola- tion of the provision of the constitu- tion referred to, as they are really created by the general laws of the stnte, in the administration of its gov- ernmental affairs." The Supreme Court of Louisiana, con- struing the inhibition in the abo\'e sec- tion upon a claim arising for payment of expenses of indigent smallpox pa- tients, which duty was imposed on the city by the state law, said: "The debt on which this judgment is founded is for current municipal expenses, and we have held that debts for such expenses do not fall under the restrictions im- posed by the statute referred to." Lay- cook v. City of Baton Rouge, 35 La. Ann. 479. Judge Brewer, in the case of Rollins \'. Lake County, 34 Fed. 845, in constru- ing a similar provision in the Colorado constitution. differed with the supreme court of that state, and held that the necessary expenditures imposed upon the county by authority of the state were not within th~ inhibition of the consti tution. In a more recent case in our own su- preme court (State ex reI. Turner v. Patch, et aI., 64 Mont. 565, 210 Pac. 148), the court had occasion to inter- pret and apply this section of the con- stitution to the expenditure of money for road purposes and therein held that the issuing of funding bonds to the amount of $104,000 to be exchanged for warrants issued for the construction, repair, improvement and maintenance of public roads and bridges over the en- tire road system of the county was not prohibited by this constitutional proyi- sion. We call attention to the reason- ing of the court in that decision, par- ticularly the last paragraph of the opin- ion. Assuming that the money is to be spent for the poor thl'Oughout the coun- ty as it would no doubt be spent, I am unahle to satisfactorily distinguish the two cases. Applying the reasoning of the court in that case, it would seem that the expenditure of money for the I)()Or is not for a single purpose. It is pointed out in the above case, and held in Hefferlin v. Chambers, 16 ~Iollt. 349, 40 Pac. 787 that if an ex- OPIXIQXS OF THE ATTORNEY GENERAL 93 penditure is for a single purpose, sums expended over a period of years or at different times, if n~gre~ating Illore than $10,000, would be prohibited by the constitution. The result would be thnt no county could incur indebtedness or Iinbility for relief of the poor when once the maximum of $10,000 had been renched, without a vote of the people. Our Supreme Court in State v. State Board of Exnminers, 74 :\Iont. 1, 238 Pac. 31G, had under consideration a similar constitutional I)["O\'ision and it was in that case held thnt Section 2, Article XIII of the constitution, pro- hibiting the creation of n debt exceed- ing singly or in the aggregate with ex- isting debts the sum of $100,000, un- less authorized by the people at a gen- ernl election, was not intended to apply to an issue of treasury notes to refund outstanding warrants issued for cur- rent state expenses. S'ee cases cited on pages 21-23. See also the recent case of Tipton \'. Erickson, et aI., 93 Mont. 466, U) Pac. (2d) 227. In view of the foregoing opinions nnd decisions, I am of Ole opinion that the constitutional provision above re- ferred to .10es not prohihit the incur- ring an indehtedness 01' a liahility in excess of $10,000 for the poor by the county commissioners without the ap- pl"Ovnl of the electors of the county.