Oregon Advisory Opinions January 01, 1967: OP 6055

Advisory Opinion Text

The Division of Planning and Devel­opment of the Department of Commerce would not revert to prior status as De­partment of Planning and Development if chapter 580, Oregon Laws 1963, is re­pealed July 1, 1967.

Contracts signed in the name of the Department of Commerce, Division of Planning and Development, prior to July 1, 1967, would have continuity and enforceability after repeal of chapter 580, Oregon Laws 1963, only to the ex­tent that rights under such contracts were vested or accrued.

The Division of Planning and Devel­opment of the Department of Commerce cannot contract for performance after scheduled repeal of chapter 580, Oregon Laws 1963.

No. 6055 December 16, 1965 Mr. S. H. Mallicoat, Administrator

Division of Planning and Develop­ment Department of Commerce You inquire:

(1) Whether the Division of Planning and Development of the Department of Commerce would revert to its prior status as the Department of Planning and Development if the Department of Commerce is not continued after July 1, 1967?

(2) Whether contracts signed in the name of the Department of Commerce, Division of Planning and Development, would have con­tinuity and enforceability within such a re­instated Department of Planning and Devel­opment?

Chapter 580, Oregon Laws 1963, here­after referred to as "the Act," created the Department of Commerce to super­vise and coordinate various boards, commissions and departments incorpo­rated within the new department.

Sections 15 through 20 of the Act established the Division of Planning and Development within the Department of Commerce as successor to the Depart­ment of Planning and Development and defined the duties of the division and its administrator.

Sections 18 and 20 of the Act restate the provisions of ORS 184.110 and 184.130, both of which were repealed by Sec. 103 of the Act. The two repealed sec­tions created the Department of Plan­ning and Development and set forth the duties of the department and its director.

Your first question is prompted by Sec. 105 of the Act, which declares that the Act "shall stand repealed on July 1, 1967." The Act contains no provision for revival of ORS 184.110 and 184.130 and other repealed statutes after the scheduled repeal.

Applicable, therefore, is ORS 174.080, which provides:

"Whenever a statute which repealed a former statute, either expressly or by im­plication, is repealed, the former statute shall not thereby be revived unless it is expressly so provided." (Emphasis supplied) ORS 174.080 was construed in Lilly v. Gladden, (1960) 220 Or. 84, 93, 348 P. (2d) 1, as follows:

"* * * ORS 174.080 provides that if a statute is repealed, either expressly or by implication, the repeal of the repealing stat­ute will not revive the former statute. * * *" (Emphasis supplied) As applied to your question, ORS 174.080 provides that inasmuch as chap­ter 580, Oregon Laws 1963, does not contain a revival provision, repeal of the Act will not revive or reinstate the stat­utes repealed by the Act.

In addition, the remaining statutes pertaining to the Division of Planning and Development also stand repealed as of July 1, 1967.

Nine sections of the law pertaining to the former Department of Planning and Development remained in amended form after implementation of the Act. These sections and their subjects are: ORS 184.120, purpose; ORS 184.140, advisory committees; ORS 184.170, research; ORS 184.180 and 184.190, business develop­ment; ORS 184.200, reports; and ORS 184.210, development credit corporations.

These nine sections were amended by the Legislative Counsel in accordance with Sec. 15 of the Act. Section 15 (2) provides:

"The Legislative Counsel, for the purpose of harmonizing and clarifying the provisions of statute sections published in the Oregon Revised Statutes, may substitute for words designating the Department of Planning and Development and the Director of the De­partment of Planning and Development, wherever such words occur in the statute sections to be published in the Oregon Re­vised Statutes, words designating the Plan­ning and Development Division of the De­partment of Commerce."

The nine amended sections are gov­erned by the rule stated in 1 Sutherland, Statutory Construction, 3d ed., Sec. 1938:

"Whenever a statute is amended the original act or section is considered to be merged with the amendment and the re­peal of the amendatory act repeals the orig­inal act or section, unless the legislative in­tent is clearly indicated to be to the con­trary. * *" (Emphasis supplied) Consequently, if the 1967 legislature allows the Act to expire on July 1, 1967, the nine sections and all other statutes relating to the Division of Plan­ning and Development stand repealed.

In our opinion the Division of Plan­ning and Development of the Depart­ment of Commerce would not revert to its prior status as the Department of Planning and Development if chapter 580, Oregon Laws 1963, is repealed as scheduled on July 1, 1967.

Your second question assumes that the Department of Planning and Develop­ment would be reinstated if the Act is repealed pursuant to its Sec. 105.

That assumption is negated by our response to the first half of your ques­tion.

We therefore construe your second question to inquire whether contracts signed in the name of the Department of Commerce, Division of Planning and Development, prior to July 1, 1967, would have continuity and enforceabil­ity after the scheduled repeal of the Act.

A contract is governed by and its validity or construction depends on the state of the law at the time it was exe­cuted. 17 C.J.S., Contracts, Sec. 22, p. 626. Persons dealing with public bodies must take notice of their authority to act, and are charged with knowledge of any and all limitations on their power. 67 C.J.S., Officers, Sec. 107, pp. 378, 380.

Because the Act contains an express termination date without a savings clause, applicable is the rule stated in Gillespie v. Rhea County, (1950) 191 Tenn. 487, 235 S.W. (2d) 4, 6:

"The overwhelming weight of authority is to the effect that 'in the exercise of its gov­ernmental and legislative powers, a board cannot, without statutory authorization, make a contract extending beyond its own term; * * *.' 149 A.L.R. 336." (Emphasis sup­plied) Moreover, repeal of a statute without a savings clause has the effect, except as to transactions passed and closed, of blotting out the statute as completely as if it had never existed. Opinions of the Attorney General, 1960-1962, p. 255. But repeal of a statute does not operate to impair or otherwise affect rights vested or accrued while the statute was in force. Inland Navigation Company v. Chambers et al., (1954) 202 Or. 339, 346, 274 P. (2d) 104.

Accordingly, it is our opinion that contracts signed in the name of the Department of Commerce, Division of Planning and Development, prior to July 1, 1967, would have continuity and enforceability after repeal of chapter 580, Oregon Laws 1963, only to the ex­tent that rights under such contracts were vested or accrued.

It is also our opinion that the Depart­ment of Commerce, Division of Plan­ning and Development, lacks authority to enter into a contract calling for per­formance after the scheduled repeal of chapter 580, Oregon Laws 1963.

ROBERT Y. THORNTON, Attorney General, By Henry Kane, Assistant.

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