                                No. 86-348
               IN THE SIJPREME COURT OF THE STATE OF MONTANA
                                   1987




BIG HORN COUNTY, MONTANA, a
Political Subdivision of the
State of Montana ,
                 PI-aintif and Appellant,
                         f


DICK GREGORY, JOHN LIND, JOYCE LIPPERT,
                Defendants and Respondents.




APPEAL FROM:     District Court of the Thirteenth Judicial District,
                 In and for the County of Big Horn,
                 The Hnrbe"-
                      ooal--                     Judge presiding.
                               2 i (4 k\ F : G -
                                 1         B
COTJNSET., RECORD :
          OF

         For Appellant:
                 Clarence Belue, Hardin, Montana

         For Respondent:
                 James E. Torske, Hardin, Montana




                                   Submitted on Briefs: Nov. 13, 1986
                                     Decided: January- 15, 1987



Filed:




                           & 75,-
                              Clerk
Mr. Justice John C.           Sheehy delivered the Opinion of the
Court..


       This is an appeal from a summary judgment entered in
favor       of   defendants   in   the   District     Court,    Thirteenth
Judicial District, Riq Forn County.            We affirm the judgment
of the District Court.
       Plaintiff Rig Forn County brought an action in District
Court, pursuant to S 7-6-2323, MCA, to recover alleged excess
expenditures by the defendant county commissioners and clerk
and    recorder.        Section    7-6-2323 provides     that    a   county
official who makes or incurs expenditures in excess of any
detailed budget appropriations shall be personally liable for
those excess expenditures.           After extensive discovery, both
sides moved         for summary judgment.      On May    30, 1986, the
District Court granted defendants' cross-motion for summary
judgment.
       The controversy in this case arose over appropriations
for the salary of a part-time justice of the peace for Rig
Horn County, Ray Morrissette.            Rig Horn County empl-oys two
justices of the peace; there is a full-time justice of the
peace, Kenneth Snively, and a part-time, "on-cal 1, " justice
of the peace, Ray Morrissette.
       On    June    20,   1983,   the   Big   Horn   County    Board   of
Commissioners passed a resolution, pursuant to S                 3-10-207,
MCA, fixing the salary of the county justice of the peace at
$18,333.61.         The resolution did not distinguish between the
full and part-time positions, nor did it designate the office
hours for each justice's court as mandated by                    3-10-208,
MCA.    The $18,333.61 salary was calculated by reviewing a
tabulation prepared. by Cnvnty Clerk and              Recorder I,i.ppert,
under the procedure outlined in the County Budget Law, SS
7-6-2313 through -2320.
        The tabulation listed the collective salaries of the
justice court at $43,630.00:            $21,200.40 was for the salaries
of the court employees, $18,333.61 was for the salary of the
full-time Justice of the Peace Snively, and $4,095.99 was for
the salary of the part-time Justice of the Peace Morrissette.
On July 26, 1983, the Board of Commissioners signed a payroll
authorization      for     Morrissette,     authorizing     a   salary   of
$8.8142 per hour for regular part-time work.              The hourly rate
was apparently arrived at by dividing the annual justice of
the peace salary of $18,333.61 by 2080 hours, the number of
working hours in a year.
        Problems   began     in   May,    1984,   when    the   timesheets
submitted by Morrissette overdrew the money appropriated for
his position.       When     it became apparent that to continue
paying Morrissette according to the claims he was submitting
would overrun his appropriation, a dispute arose as to how to
handle the budget problem.              Commissioner Ruegamer proposed
that the Board adopt an emergency budget resolution pursuant
to 5 7-6-2342, MCA.         Commissioners Gregory and Lind rejected
Ruegamer's proposal, and instead paid. Morrissette's salary
claims.     They later adopted a resolution to make line item
transfers    in    the   budget    to     cover   the    expenditures,   as
authorized under 5 7-6-2325, MCA.                 The total overrun of
Morrissette's salary was $5,210.98 at the end of the fiscal
year.
     Rig Horn County contends the line item transfer of funds
to cover the $5,210.98 overrun on Morrissette's salary was a
violation of 5 7-6-2325, MCA.            That statute provides:
       Upon     resolution adopted   by   the   board   of
       commissioners at a regular or special meeting and
       entered upon its minutes, transfers or revisions in
       the seneral budqet system                     ...
                                           may be made,
         rovided - -no -salaryeshall be increased above
                  that
       - amount aooro~riated therzor.
       :
       he
       added. )
                             J.     C
                                                 (Em~hasis
                                                  .                   L




        Big Horn County argues that by paying the $5,210.98, the
Board    of   Commissioners             illegally      increased    Morrissette's
salary    from the        $4,095.99       which was        appropriated    in the
county's final budget.                  Under    $    7-6-2323 (2)(a), MCA, the
effect of exceeding the $4,095.99 appropriation is to make
Commissioners Gregory and Lind and Clerk and Recorder Lippert
personally         liable         for    four-fold       t.he    amount    of   the
over-expenditure, or $20,843.92.
       We find the County has misconstrued the application of
the statute.         In June, 1983, the Board, by resolution as
required und.er       $    3-10-207, MCA, set the annual salary for
county justice of the peace at $18,333.61.                       The annual salary
computed      to    an    hourly        rate    of    $8.8142.      This   amount,
$18,333.61 a year or $8.8142 per hour, was never increased.
       Given the part-time, "on-call" status of Morrissette' s
position, it was not possible to determine a precise yearly
amount for the position.                  As pointed out by the District
Court, the $4,095.99 appropriated in the budget was, at best,
an estimate of the hours Morrissette would work in the coming
fiscal year.        Thus, the $4,095.99 appropriated in the budget
was not a "salary" as contemplated under the County Budget
Law.      It was         rather     the best         estimate of     the   cost of
Morrissette's time, based on a fluctuating workload.
       Under the 1972 Montana Constitution, Art. VII, S 5 (11,
justices of the peace are to receive monthly compensation as
required by law.            The law of Montana specifically mandat-ec
that salaries for justices of the peace shall be set by a
resolution of the board of county commissioners.                      Section
3-10-207, MCA.       The Big Horn County Board of Commissioners
complied with this law by setting the salary of the justice
of the peace at $18,333.61.           Having set this salary, they
were    required    to   pay   Morrissette      the   salary     he   earned
commensurate with his workload.              Since Big Horn County did
not need two full-time justices of the peace, Morrissette
voluntarily accepted the part-time position.               He maintained
his own office, filling in for the full-time justice of the
peace on an "on-call" basis.         In view of this situation, the
Board of Commissioners authorized payment of Morrissette at
$8.8142 an hour, an amount which would accurately reflect his
part-time,    fluctuating hours.             When   Morrissette's         hours
overran the budget appropriation, the Commissioners passed a
resolution transferring funds to cover the overrun.                       This
transfer did not have the effect of increasing Morrissette's
salary, which       remained at     $8.8142     an hour.         Since this
transfer     of    appropriations    was      accomplished       under     the
authorization of 5 7-6-2325, MCA, the Board of Commissioners
and    Cl-erk and   Recorder acted within the           scope of theFr
statutory duty and are not personally liable.
       Jud.gment of the District Court is affirmed.

                                      ,      ""\
                                      '..\                   3    ~   d    k   9
                                                      Justice


We Concur:
