AGO Opinion 97047
Office of the County Comptroller; Counties Having Less than Three Hundred Thousand Inhabitants
DATE: September 10, 1997
SUBJECT: Office of the County Comptroller; Counties Having Less than Three Hundred Thousand Inhabitants
REQUESTED BY: Senator Joyce Hillman
Nebraska State Legislature, District No. 48
WRITTEN BY: Don Stenberg, Attorney General
Fredrick F. Neid, Assistant Attorney General
You have requested the opinion of the Attorney General
concerning whether ". . . counties with less than 300,000
population can have a county comptroller or a similar position."
The question you present constitutes a local issue of particular
interest to counties which this office would not normally address
within the scope of its responsibilities. However, we respond to
your request for an opinion since you indicate you are considering
It is our opinion that application of the statutory provisions
creating the office of county comptroller is limited to counties
having a population greater than three hundred thousand residents.
Accordingly, the office of county comptroller is not created in
counties with less than three hundred thousand inhabitants.
OFFICE OF THE COUNTY COMPTROLLER
You appear to raise this question because the office of county
comptroller is specifically created by statute in counties having
a population in excess of three hundred thousand residents. Neb.
Rev. Stat. § 23-1401 (1991) states in particular part:
In any county in this state having a population in excess
of three hundred thousand inhabitants, there is hereby
created the office of county comptroller for such county,
and the county clerk of such county shall be the ex
officio county comptroller for the county. The county
comptroller shall act as the general accountant, chief
auditing officer, internal auditor, and fiscal agent of
the county and shall exercise a general supervision over
all officers of the county charged in any manner with the
receipt, collection, and or disbursement of the county
revenue. . . .
The express provisions of section 23-1401 apply only to
counties having a population exceeding three hundred thousand
residents. The language of the statute is clear and unambiguous.
The general rule governing statutory construction and
interpretation provides that, in the absence of anything to the
contrary, statutory language is to be given its plain and ordinary
meaning. State ex rel. Wieland v. Beerman, 246 Neb. 808, 523
N.W.2d 518 (1994); In re Application of Jantzen, 245 Neb. 81, 511
N.W.2d 504 (1994). For this reason, it is our conclusion that the
office of county comptroller is not established in counties with a
population of less than three hundred thousand inhabitants.
OTHER STATUTORY PROVISIONS
We further point out that certain statutory responsibilities
of a county comptroller are performed by other officers in counties
with less than three hundred thousand residents. It is the duty of
the county clerk to keep records of all proceedings of the county
board, to prepare the annual inventory of county personal property
within the custody of the county clerk, to maintain the record of
any county warrants issued, and to perform other responsibilities
detailed in Neb. Rev. Stat. §§ 23-1301 to 23-1312 (1991 and Cum.
Supp. 1996). Generally, the county treasurer performs the duties
of fiscal agent for the county. See Neb. Rev. Stat. §§ 23-1601 to
23-1606 (1991 and Cum. Supp. 1996). And, it has been held that the
county treasurer is the collector and custodian of public money
within the meaning of the Nebraska Constitution. State ex rel.
Good v. Marsh, 125 Neb. 125, 249 N.W. 295 (1933).
Specific duties expressly provided by statute to be performed
by specific county offices cannot be performed by other county
officials. The courts have held that counties and county officials
only have such authority as provided by law. A county has only
those duties and powers conferred upon it by the Legislature.
State ex rel. Scherer v. Madison Cty. Comrs., 247 Neb. 384, 527
N.W.2d 615 (1995); Rock Cty. v. Spire, 235 Neb. 434, 455 N.W.2d 763
(1990). It has also been held that counties and county boards can
exercise only such powers as are expressly conferred upon them by
statute, and such grant of power must be strictly construed and any
reasonable doubt of existence of powers is resolved against them.
Shanahan v. Johnson, 170 Neb. 399, 102 N.W.2d 858 (1960).
Based on these authorities, we believe that certain duties and
powers designated by statute to be performed by specific county
offices are required to be performed by those offices and not by
other officials. Accordingly, it is our opinion that a specific
duty statutorily required to be performed by the county clerk or
treasurer may not be performed by a county comptroller "or a
similar position" in counties having a population of less than
three hundred inhabitants.
Fredrick F. Neid
Assistant Attorney General