Montana Attorney General Opinion 16-358

Opinion No. 358. State Examiner-School Districts, Examination of-Trustees, Powers of. HELD: 1. It is the duty of the State Examine!' to examine the books and accounts of all school districts of the first and second class in like manner as he is required to examine the books and accounts of the state, county and city officers. 2. The trustees of a school district have no power to employ private ac- countants to examine school district books and accounts or to pay for such services out of school district funds. September 26, 1936. Hon. Frank H. Johnson State Examiner The Capitol You have submitted the following questions: "i. Is it the duty of the State Ex- aminer to examine the books and ac- counts of all school districts of the first and second class in like manner as he is required to examine the books and accounts of the state, county and city officers? "2. Can the trustees of a school district legally employ private ac- countants and pay for such services out of school district funds?" Section 215 R. C. M. 1935 provides: "The state examiner, in addition to the duties now imposed upon his of- fice, shall have the power and au- thority, and it shall be his duty, to make at least one examination each year of the books and accounts of all incorporated cities and towns, and the books and accounts of all school districts of the first and second class, in like manner as is now required by law for the examination of the books and accounts of state and county of- ficers." This section clearly makes it the duty of the state examiner to examine the books and accounts of all school districts of the first and second class, unless it has been repealed. Said sec- tion was enacted in 1913, being Sec- tion 2, Chapter 84 of the 1913 Session Laws. Section 217 R. C. M. 1921, which was amended by Chapter 93, Laws of 1923, was expressly repealed by Chap- ter 89, Laws of 1927. Said Section 217, among other things, provided: "The state examiner shall examine the books and accounts of the school dis- tricts of the first and second class upon receiving a request signed by a majority of the board of trustees of such district; said school districts upon making a request for such ex- amination shall pay the state treas- urer the following amounts: "School districts of the first class, one hundred dollars. "School districts of the second class, twenty-five dollars. "All moneys collected under the provisions of this act shall be de- posited in the general fund." Said Section 217 was enacted as Section 3 of said Chapter 84, Laws of 1913. Both sections were enacted at the same time and are part of the same chapter. Section 215 placed the duty upon the state examiner to make the examination. Section 217 stated under what circumstances such ex- amination should be made, and pro- vided that the cost should be borne by the school districts. The two sec- tions serve separate functions and are not inconsistent. Was Section 215 repealed by impli- cation by Section 73 of Chapter 89, Laws of 1927, arranged as Sections 6014.77-6014.84 in the 1935 Code? Re- peals by implication are not favored, and courts wiil not hold a law re- pealed by implication unless it is clearly repugnant to later enactments. I am of the opinion that Section 215 is not repealed by implication by the enactment of said Section 73, Chapter 89, Laws of 1927. While tbis chapter expressly repealed Section 217, R. C. M. 1921, thereby abolishing the ex- amination fee to be paid by school districts and the provision that such examination should be made upon the signed request of a majority of the board, the duty of the examiner to :nake the examination of these school OPINIONS OF THE ATTORNEY GENERAL 353 districts could still consistently re- main. The legislature may have felt that such examination should be made regardless of the wishes of the board, and without cost to the dis- trict. If there was any intention on the part of the legislature to repeal said Section 215, that intention does not effectively l.ppear. Under the pro- vision of Section 6014.84 special ex- aminations of school districts are -dis- cretionary, that is, they shall be made when in the judgment of the state ex- aminer they are necessary. Clearly all examinations cannot be special ex- aminations as a special examination is one in addition to the regular ex- amination. It may be of interest to call attention to Section 1039.7, which lJrovides for the examination of third class school districts at least once each year by the county treasurer. It would seem that there is as much necessity at least for examination of first and second class districts. If Section 215 is not in force there would be no provision for examination of first and second class districts at all. In view of the large number of such districts, the failure to require that they pay the cost of examination is .serious but the duty of the state ex- aminer ·to make the examination nevertheless remains. Your second question must be an- swered in the negative. In Judith Basin County v. Livingston ·et aI., 89 Mont. 438, 298 Pac. 356, the Supreme Court held that the board of county commissioners is without power to enter into a contract for services with a private individual, the performance of which is cast upon a public official, and the effect of which is a usurpa- tion of the functions of such official. While the examination of county book~ and records was there involved, the same reasoning would apply to the books and records of school districts which the state examiner is required by law to examine.