Opinion
No. 7,966.
Submitted May 22, 1939.
Decided June 7, 1939.
Writ of Supervisory Control — Power of Boards of County Commissioners to Maintain County Re-employment Offices — County Poor Budget — Action of Board in Declaring Emergency Upheld — Duty of Counties to Care for Poor — Opinions of Attorney General Construing Law Entitled to Respectful Consideration. Counties — Care of Poor — Power of Board of County Commissioners to Establish and Maintain County Re-employment Office. 1. While boards of county commissioners are not in express terms granted authority to establish county re-employment offices, they have implied authority so to do flowing from powers expressly conferred with relation to the care of the poor, such as section 4465.4, Rev. Codes, declaring that county commissioners may erect hospitals for the indigent sick, or otherwise dependent poor, and giving them broad discretionary power to "otherwise provide for the same." Same — What Does not Prevent Maintenance of County Re-employment Office. 2. The fact that county re-employment offices are not restricted in their activities to helping only the dependent poor, but may furnish employment to those not in need, does not prevent the maintenance of such offices, so long as their principal function or purpose is that of aiding the dependent poor, the occasional furnishing of employment to those not in immediate need being only incidental. Attorney General — Construction of Law by Officer Entitled to Respectful Consideration. 3. While construction of a law in an opinion of the Attorney General is not binding upon the supreme court, even though acquiesced in by several legislative sessions, it is entitled to respectful consideration and will be upheld if not palpably erroneous. County Poor — Poor Fund Budget — Action of County Commissioners in Declaring Emergency Upheld on Application for Supervisory Control. 4. Held, on application for writ of supervisory control to review the judgment of the district court in upholding the action of a board of county commissioners in declaring an emergency necessitating appropriation of additional moneys for its Poor Fund Budget from the anticipated revenue for the following year for maintenance of a county employment office, there having been substantial evidence of unforeseeable eventualities which made the action of the board necessary and to warrant the approval thereof by the court. Supreme Court — Power of Court in Reviewing Ruling of Trial Court in Matter Above. 5. Quaere: In view of the provision of section 4613.6, Revised Codes, declaring that the ruling of the district court in such a matter as that referred to in paragraph 4, above, shall be final, has the supreme court the power to disturb the trial court's finding under its original jurisdiction where the lower court acts capriciously or in the absence of evidence to support it? County Poor — Cost of Maintaining County Re-employment Office Chargeable to County Poor Fund. 6. Since the authority to maintain a re-employment office springs from the express power to care for the dependent poor, the cost thereof is properly chargeable against the county poor fund.
Appeal from the District Court of the County of Lake, and Albert Besancon, Judge.
Messrs. F.N. Hamman, T.R. Delaney and L.D. French, for Relator, submitted a brief; Mr. Hamman argued the cause orally.
Mr. R.H. Wiedman, County Attorney of Lake County, and Mr. Everett E. Lofgren, Special Assistant Attorney General, for Respondents, submitted a brief, and argued the cause orally.
In July, 1938, the county commissioners of Lake county fixed a budget at the sum of $1,015 for maintaining a re-employment office and paying the salary of the person in charge. It was described as "Miscellaneous Poor Fund Budget No. 248." This fund and all of the poor fund having become exhausted, the commissioners, acting under section 4613.6, Revised Codes, on February 7, 1939, by unanimous vote passed a resolution declaring an emergency necessitating the current use of $450 additional money for the salary, and $305.21 for maintenance of the re-employment office until June 30, 1939, to be appropriated from the anticipated revenue for the following year. The resolution was published, together with a notice that a public hearing would be held on March 7, 1939, at which taxpayers would be heard for and against the expenditures for such alleged emergency. After hearing, the commissioners sustained the resolution by unanimous vote. An appeal was taken by relator to the district court of Lake county, where, after hearing, an order or judgment was entered sustaining the action of the county commissioners. The relator, by this proceeding, seeks the supervisory power of this court to annul and vacate the order or judgment of the district court.
The first question presented is whether the county [1-4] commissioners have authority to establish a re-employment office. The statutes do not in express terms grant authority so to do. If authority exists, it must be by virtue of power necessarily implied from those expressly conferred.
The duty of caring for the poor is primarily an obligation of the counties (sec. 5, Article X, Montana Constitution), but because of the magnitude of the undertaking, federal and state governments now cooperate with the counties in the discharge of this obligation. ( State ex rel. Wilson v. Weir, 106 Mont. 526, 79 P.2d 305.) The indisputable fact that unemployment is the direct cause of most of the distress calling for relief in one form or another caused Congress to pass the Wagner-Peyser Act of June 6, 1933, providing for a national system of free public employment offices. (29 U.S.C.A., sec. 49c.) In general, it provided for cooperative action between the federal government and the states through a state board, department, or agency.
The Attorney General of Montana rendered an opinion on October 31, 1933 (Vol. 15, Attorney General's Rep., p. 261), to the effect that county commissioners have the power to employ a manager for a county employment office to cooperate with the National Re-Employment Service. He held that this power was implied from what is now section 4465.4, Revised Codes. Since then three legislative sessions have been held, and the legislature has not seen fit to declare to the contrary. While this executive construction of the law, acquiesced in by the legislative assembly, is not binding on this court, it is entitled to respectful consideration and will be upheld if not palpably erroneous. We think the Attorney General's opinion is sound, and that the county commissioners have the implied power to maintain a re-employment office, and to hire an employment manager in an attempt to place some of the dependent poor in remunerative employment and, to that extent, conserve the poor fund.
Section 4465.4, after providing that the county commissioners might erect and maintain hospitals for the indigent sick or otherwise dependent poor, gives the broad discretionary power to them to "otherwise provide for the same." By Chapter 82, Laws of 1937, state and federal governments assist the counties in caring for the poor, and by Chapter 137, Laws of 1937, the state recognizes that unemployment increases the number of those needing government aid.
It is our view that the best aid that can be given to an employable dependent is to assist him in finding profitable employment. That is the purpose of the re-employment office. That it has met with some measure of success is disclosed by the record. That it is not restricted in its activities to helping only the dependent poor, but may furnish employment to those not in need, does not prevent the county commissioners from maintaining it, so long as its principal function or purpose is that of aiding the dependent poor, and the occasional furnishing of employment to those not in immediate need is only incidental.
Relator next contends that there was not sufficient evidence [5] to sustain the action of the commissioners in declaring the existence of an emergency, or to sustain the action of the court in upholding the county commissioners in so declaring. The record discloses that the budget for the re-employment office was first fixed at $1,015 under the promise that the state and federal governments would match that amount dollar for dollar. The promise of the representatives of the state and federal governments was not made good, and, therefore, the budgeted amount was exhausted and the need for the employment office still existed.
There was ample evidence to warrant the court in upholding the action of the county commissioners in declaring an emergency. Under section 4613.6, Revised Codes, with respect to the hearing before the court, it is provided: "At such hearing the court shall hear the matter de novo and may take such testimony as it deems necessary. Its proceedings shall be summary and informal and its determination as to whether an emergency, such as is contemplated within the meaning and provisions of this Act, exists or not, and whether the expenditure authorized by said order is excessive or not shall be final."
We have assumed, without so deciding, that we have the right, notwithstanding the quoted provision, to determine whether there is substantial evidence to support the court's determination, or whether it acted capriciously. There being substantial evidence supporting the court's order or judgment, we will not disturb it. Whether we would have the right to disturb it in the absence of evidence to support it, we need not now determine.
The only other point urged by relator is that, if the county [6] commissioners have the right to maintain a re-employment office, they may not, in any event, pay the cost thereof out of the poor fund. What we have already said is sufficient answer to this contention. The authority to maintain such an office is implied from the express power to care for the dependent poor. The cost thereof may therefore be charged against the poor fund of the county.
The order or judgment of the court was proper. The writ applied for is denied and the proceeding dismissed.
MR. CHIEF JUSTICE JOHNSON and ASSOCIATE JUSTICES STEWART and ERICKSON concur.
MR. JUSTICE MORRIS concurs in the result.