REQUESTED BY: Steven J. Mercure, Johnson County Attorney, Tecumseh, Nebraska, 68450 In commissioner type counties, may the expenditure and allocation of rock funds for county roads within the county be determined by a simple majority of the Board of County Commissioners?

Yes.

As stated in State ex rel. Johnson v. County of Gage,154 Neb. 822, 49 N.W.2d 672 (1951), `The powers of a county are authorized and required to be exercised by the county board. Sec. 23-103, R.S. 1943.'

Section 39-1402, R.R.S. 1943 states:

"General supervision and control of the public roads of each county is vested in the county board. The board shall have the power and authority of establishment, improvement, maintenance and abandonment of public roads of the county and of enforcement of the laws in relation thereto as provided by the provisions of this act."

Section 23-106(1), R.R.S. 1943 states, `The county board shall manage the county funds and county business except as otherwise specifically provided.'

Section 23-116.02, R.R.S. 1943 does state, `The county board shall have power as a board, or as individuals, to perform such other duties as may from time to time be imposed by general law.'

Section 23-153, R.R.S. 1943 states, `The county board shall meet and hold sessions for the transaction of county business, at the courthouse, or at the usual place of holding sessions of the district court, on the second Tuesday in January and at such other times as the board deems necessary and may adjourn from time to time.'

Section 23-155, R.R.S. 1943 states, `When two only of the commissioners of the board shall attend, and shall be divided on any question, the decision thereof shall be deferred until the next meeting of the board, and then the matter shall be decided by a majority of the board.'

It is stated in 20 C.J.S. 87, that, `The powers of county boards must be exercised by them as boards and not as individuals, and an individual member, unless expressly authorized, cannot bind the county by his acts.'

In summary, the County Board in Commissioner type counties exercises the powers of the county, supervises and controls county roads, manages county funds, and meets and acts as a board when exercising its responsibilities and duties.

It is considered axiomatic that to effectuate the statutes and observe the rulings previously listed, the County Board could only act by majority vote in reaching decisions, this to include the expenditure and allocation of rock funds for county roads.