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AGO Opinion 97047

Office of the County Comptroller; Counties Having Less than Three Hundred Thousand Inhabitants
Opinion 97047

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

remedial legislation.




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. . . .




(Emphasis added).




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.




Sincerely yours,




DON STENBERG

Attorney General






Fredrick F. Neid

Assistant Attorney General