The Western news. [volume] (Libby, Mont.) 1933-current, 1939-01-19
COUNTY OFFICIALS FILE ANSWER
TO STATE EXAMINERS REPORT

vi odiu lldifllA do Ildu DGEll lIlCuIIaQ
| in good faith and for value re-
ceived. The county commissioners
were advised by the county attor-
ney long before the suit was brought
that under the budget law they
could not allow any of those claims
and the county clerk could not
draw a warrant in payment of any
of them except upon an order of a
court of competent jurisdiction"
The budget law, section 4613.5, r.
c. NJ, 1895, does not say as you say
| that all claims incurred in excess of
the budget appropriation are IL
legal claims Such excess claims
may or may not be Illegal Wheth-
er they are legal. or illegal de-
Ponds upon questions Of law and
fact and upon the order made by a
court of competent jurisdiction as
the budget law expressly provides.
The district court refused to take
jurisdiction in the suit as brought
and the action was dismissed. Suit
has been brought in the district
court by certain owners OF such ex-
cess claims, and without doubt that
court now has jurisdiction, and the
court will be compelled to decide
which of the claims, if any, in
volved in the suits are legal and
must be paid. The personal habil-
Ity Of the county commissioners at
taches only to such claims as are
allowed by them in excess of the
budget appropriation. The COM
missioners disalIowed all of them.
If court of competent jurisdiction
orders the county to pay the excess
claims there is no personal liabil-
llty on the commissioners. The same
observations apply to the liability
Of the county clerk. Judging from
their report, your deputies are not
correctly informed on the budget
law.
Claims Under Nepotism Act
Your report says. Claim No.
24484 of E. L. Kemp in amount of
$4,000 is for road work in the Lib
by District We are informed that
E. L. Kemp is the son of Commits
sloner Kemp of this district, and that
being the case, this is direct viola
ton of the Nepotism Act, Section
ass of the Revised Codes of 1885.
In Lincoln County, all of the road
employees are hired by the County
Commissioners themselves, and for
that reason the above case is in
violation of the Nepotism Act"
1t occurs to the commissioners
that deputies in your office are not
/ appointed for their ability to give
legal opinions or to give legal opin-
ions. Very few courts have CON
strued nepotism acts. The com
missioners understand that they get
their legal advice from the county
attorney and the attorney general
Whether the appointment of E. l.
Kemp is a violation of the Nepotisn
Act depends upon the construction
of the Act itself Upon this con
struction lawyers and courts differ
The question is, is the statute broad
enough to include person related
within such prohibited degree al
though he is only employed to per
form a particular piece of work, tc
do a particular job, in short, part
time work.
In the case Of Reddel v. State
(Okla.) ITO Pac. 273, the court helc
that employment of a relative tc
do part time, occasional work wa.
not violation of the nepotism law
The court based its decision on the
reasoning that if the legislature hac
intended to include an occasional
act Of employment it would have
said SO in plain words. Former At
torney General Maggie in an opin
ion rendered July IL, 1898, Vol II
Opinions of Attorney General 1873
held: "The Nepotism Act does no
provide for any exemptions for oc
casional work and therefore the APP
pointment by an officer Of a refa
tive to do occasional mimeograpE
work is prohibited by the Act Mr.
Nagle did not cite any cases, ant
you will note how directly opposite
his reasoning is from that in thu
Reddel case. He says in effect tina
If the Legislature had intended Il
exempt occasional employment from
the statute ii would have done SO il
plain words. The county attone,
. told us that in his opinion the rea
soning of the Oklahoma court i
, the better reasoning. Mr. Ketnl
IL Turn to page six)