Montana Attorney General Opinion 17-158

Opinion No. 158. Attorney General-Duties-Opinions of-Force and Effect. HELD: The Attorney General, be- ing the legal adviser of the legislative assembly, of all state officers, boards and commissions, and of the county attorneys and county commissioners, and being clothed by law with super- visory power over county attorneys, .his opinions are binding up.on such C?ffi~I~ls until reversed or modified by JudiCial decision. September 17, 1937. Hon. I. M. Brandjord Administrator State Department of Public Welfare Helena, Montana Dear Sir: You have submitted the inquiry as to whether or not county officials are bound by the construction of a statute, as placed upon the same in the Attor- ney General's opinions, and in the absence of judicial decision to the contrary. The Constitution and the statutes, generally and specifically, constitute the attorney general the legal adviser to the various state officials, state de- partments, county attorneys, boards of county commissioners, and other coun- ty officials .. Section 1. Article VII of the Consti- tution provides that the attorney gen- eral shall perform such duties as. are prescribed by the Constitution and the laws of the state. Section 199, R. C. M., 1935, pro- vides: "It is the duty of the attorney gen- eral: (Section 6) "To give his opinion in writing, without fee, to the legislative assem- bly, or either house thereof, and to any state officer, board, or commis- sion, any county attorney, and to the board of county commissioners of any county of the state, when required upon any question of law relating to their respective offices." In the same relationship as the attor- ney general is the legal adviser to the state officials, the county attorney is the legal adviser to the county officials. The attorney general occupies an ap- pellant position in his relation to the county attorney, comparable to the position the supreme court occupies to the district courts. The attorney gen- eral may direct the county attorneys in all criminal and civil cases and in all other legal matters, including opin- ions the county attorneys may render to the county officials. He has the power to reverse, affirm, or modify opinions rendered by a county attorney to the county officials. Paragraph 5 of Section 199, R. C. M. of 1935, provides: "[ It is the duty of the attorney general:] "To exercise supervisory powers over county attorneys in all matters pertaining to the duties of their of- fices, and from time to time require of them reports as to the condition of public business intrusted to their charge." Section 4819, R. C. M., 1935, pro- vides for the general duties of the county attorney. Paragraph 6 of said section provides that the county attor- ney shall, "Give when required, and without fee. his opinion in writing to the county, district, and township officers, on matters relating to the duties of their respective offices." Paragraph 8 of said section provides that the county attorney must, "when ordered or directed by the attorney general so to do, to promptly institute and diligently prosecute in the proper court, and in the name of the State of Montana, any criminal or civil action or special proceeding, it being hereby declared that the super- visory powers granted to the attorney general by Section 199 (5) of these codes, include the power to order and direct said county attorneys in all matters pertaining to the duties of their offices." The statute places the responsibility of legal matters of the counties upon the county attorney, and not upon the other county officials, and it necessarily follows that it is the duty of the county officials to be guided by his advice upon such matters. As the law author- izes the attorney general to exercise OPINIONS OF THE ATTORNEY GENERAL 181 supervisory control over the county attorney, it follows that if the attorney general issues an opinion in conflict with that of the county attorney, the latter's opinion has been superseded, in the same manner as a judgment of the district court is superseded by the final judgment of the supreme court. In the absence of a contrary court judg- ment, if the county attorney's opinion has been superseded, the only rule of law remaining for the county officials to follow would be that rule as enunci- ated in the opinion of the attorney general, and such opinion would con- stitute the law. In the case of State v. District Court, 22 Montana 25, at page 27, the court said: "A duty to exercise supervisory power clearly implies the possession of supervisory power. There is, there- fore, in the Attorney General a right to oversee for direction, to inspect with an authority all matters pertain- ing to the duties of the county attor- neys of the State, and to direct with superintending oversight the official conduct and acts of such officials; and it is his prescribed duty to exercise and perform these acts, and to do w hat eve r may be necessary and proper to render his power in these respects effective. Duty to exercise general supervisory power over coun- ty attorneys would not, however, necessarily carry with it a duty to actively assist a county attorney in the discharge of his duties, for su- pervision might be exerted without actual assistance. Thus, in the prepa- ration of an important argument, the Attorney General might, under the power of supervision, communicate by letter with a county attorney, di- recting the pleadings to be relied on, or the line of argument to be pursued, and the general conduct of the trial, even though such course conflict with the county attorney's wishes; yet be absent throughout the whole proceed- ings so conducted under his super- vision. In this single clause of the statute, therefore, we do not find a duty detailed to the Attorney General to personally actually assist a county attorney in the performance of the latter's duties. Proceeding, evidently, with this view of what are the Attor- ney General's supervisory powers over county attorneys, the Legislature stepped further, and, guided by the public interests, announced by an- other special clause of the statute cited, as one of the Attorney Gen- eral's duties, that he shall, 'when required by the public service, or directed by the Governor, to assist the county attorney of any county in the discharge of his duties.' Here we have a specific direction by which the Attorney General is to do more than to exercise those supervisory powers contemplated by previous re- quirements of the law-he is to assist the county attorney in the discharge of his duties when the public service requires it, or when the Governor directs him to give such assistance. This assistance is to be actual, and, by fair contemplation of the statute, should be by the presence and par- ticipation of the Attorney General, if his presence may be had. The super- visory power, heretofore discussed, always vests in the Attorney General, and accompanies him wherever he may go in the discharge of his duties; but under subdivision 7, quoted, su- peradded to the duty of supervision is that of actual assistance to be rendered whenever the contingencies referred to in the section have arisen. Nor is there any limit whatever to the assistance to be given-no point where it is to begin or to end, except the bound of the official duty of the county attorney. Just so long as the county attorney has a duty to dis- charge, and just so far as he may go in discharging it, so long is it the right and obligation of the Attorney General to actively assist him in the discharge of such a duty; and equally far in executing the duty shall he go when the public service requires it, or when directed to assist by the Governor. "The policy of the law is easily discerned. The Attorney General is the principal law officer of the State. His duties are general; his authority is co-extensive with public legal af- fairs of the whole community. His advice often affects the rights of all persons within the State, and, except- ing judgments and orders of court, his opinions control public interests more largely than do the acts of any other official of the State. Responsi- bilities of so high a character are usually put upon a lawyer of ability, experience and character, and, pre- 182 OPINIONS OF THE ATTORNEY GENERAL suming the Attorney General to be such, the statute has given him the significant, yet extensive, powers re- ferred to. Again, exigent times oc- casionally arise in the affairs of a state, where local considerations ren- der it impolitic to intrust a county attorney with the discharge of his duty unaided by learned counsel rep- resenting the supreme authority of the State. Circumstances sometimes demand that there shall not only be a supervisory action, but an assistance to an inferior official as well, to the end that justice may be more cer- tainly attained. vVhen consideration of this nature move the Attorney Gen- eral, or, even when they do not move him, yet the Governor is moved by them, and directs him to exert his authority, he shall assist the county attorney, and must do so in the dis- charge of the duties which the county attorney is required by law to per- form." If the county officials fail and refuse to follow the opinion of the Attorney General, where no judicial decision has been promulgated, it will be impossible in a great many instances to establish a uniform administration of the law throughout all the counties of the state, and in order for property and persons to receive the equal benefits and per- form equal obligations, under the laws, it is necessary to have a uniform ad- ministration of those laws. This situa- tion is aptly illustrated in the admin- istration of your own department, the Department of Public Welfare. and in the county departments of Public Welfare. where the federal government has required as a condition to federal grants in aid and public assistance, in the State of Montana. that the act shall be placed in uniform operation through- out all of the counties of the state. If different counties take different views. and different county attorneys render different opinions upon this particular law, a chaotic condition milY arise, and the law could not be administered uniformly, and the state would be de- prived of considerable money from the federal government. If the county officials do not follow the Attorney General's opinion, they must assume the responsibility for the consequences of their acts and par- ticularly in that class of c~ses where good faith is involved, and such re- sponsibility may include, 111 some 111- stances, personal liability. If the coun- ty officials follow said opinion, and even though the opinion proves errone- ous, generally they are safeguarded against the consequences. Therefore, it is my opinion that the law provides that the various state offi- cials and departments, including your department. and the county officials, shall be guided by the opinions ren- dered by the Attorney General, until the same are reversed or modified by judicial decision.