Oregon Advisory Opinions June 04, 1945: OAG 45-98 (June 4, 1945)

Oregon Attorney General Opinions

1945.

OAG 45-98.

---

191

Under election laws now effective, the county clerk is not authorized to place fixed registration booths in any other place than the county court house.

Section 81-106, O. C. L. A., as amended by chapter 25, Oregon Laws 1945, provides that the registrar appointed by the county clerk shall maintain a fixed place, conveniently located, for the registration of voters.

Gentlemen: In a letter dated May 24, 1945, you have requested my opinion as to whether or not there is anything in the law prohibiting the county clerk from placing fixed registration booths in the city of Portland elsewhere than in the county court house.

In that connection your attention is called to the following statutes:

Section 81-101, O. C. L. A., provides:

"The county clerk in each county in this state shall procure such materials and clerical assistance as may be needed in registering the electors of the county in accordance with the provisions of this act. The board of commissioners or county court in each county shall order to be paid out of the county treasury the reasonable and necessary expenses so incurred by the county clerk."

Section 81-103, O. C. L. A., provides among other things:

"Every elector may be registered without charge by personally appearing in the office of the county clerk and stating the following facts, which the clerk shall enter in permanent writing or typewriting upon the official registration cards: * * * If the elector is registered by the clerk in person, he shall so sign his name in attestation thereof, and if the elector is registered by a deputy, then, in addition to the name of the clerk, the particular deputy actually registering the elector shall sign his name, at length, in attestation thereof; * * *."

Section 81-106, O. C. L. A., reads as follows:

"Electors may register without charge before any official registrar in the county or with the county clerk. Such official registrar shall receive, unless otherwise provided herein, 10 cents for registering each voter residing outside of a city or town wherein is situated a county seat, said sum to be paid by the county court of such county. Any elector who, by reason of illness, is prevented from personally appearing before any county clerk or registrar for the purpose of registering, may make application to any official registrar to be permitted to register at his or her place of abode. This application shall be accompanied by a fee of 25 cents, together with a sum equal to 10 cents per mile for the distance which said registrar shall necessarily

---

192

travel in registering said elector. Thereupon it shall be the duty of said registrar to register said elector at his or her place of abode. Electors absent from their county may register before any notary public, or county clerk, in the county where they may be. In such case the notary public or county clerk shall mail the affidavit of the elector to the county clerk of the elector's county and may collect the fee, not to exceed 25 cents, from such elector. Any electors who may be absent from the state upon business of the state or of the United States may be registered by subscribing to the affidavit required of a resident elector before a notary public and mailing such affidavit to the county clerk of the county in which said elector claims his residence; provided, the clerk may reject the registration of any person whom he believes to be disqualified. The county clerk of each county shall appoint one or more official registrars, who shall have jurisdiction in one or more precincts in his county, as the county clerk shall designate, and shall have power to administer oath for the purposes provided in this act. Such registrars shall qualify by subscribing to the usual oath of office and shall hold office at the pleasure of the county clerk, but not beyond the term for which the county clerk was elected."

I do not find anything in the statutes herein referred to, or elsewhere, which authorizes the county clerk to place fixed registration booths in the city of Portland in any other place than the county court house. His powers in that regard depend upon what the law specifically provides or requires, it being the rule that public officers have no powers except such as are expressly provided by the act or statute relating to their official duties.

It is also a well-established rule of law that any action taken by an officer which is outside of the authority specifically reposed in him by the statute is his own individual and personal action and does not represent or bind the state.

State v. Deschutes Land Co., 64 Or. 167, 175.

Wallace & Co. v. Ferguson, 70 Or. 306, 311.

In Mechem's Public Offices and Officers, section 511, page 335, it is said:

"Express grants of power to public officers are usually subjected to a strict interpretation and will be construed as conferring those powers only which are expressly imposed or necessarily implied."

You specifically state in your letter:

" * * * We wish to have an opinion from you as to whether or not there is anything in the law prohibiting the County Clerk from placing fixed registration booths in the city of Portland other than the Court House. We are asking this opinion of you because we believe there is no such prohibition, and, furthermore, it does have a bearing on the legislation passed at the recent legislature, of which we were members."

I do not know whether or not I get the purport of your request in the above statement. However, section 81-106, as amended by chapter 25, Oregon Laws 1945, includes the additional provisions:

" * * * Each registrar so appointed shall establish and maintain a fixed place, conveniently located, for the registration of voters; and shall, so far as may be practicable, acquaint the public with the location and facilities thus made available for that purpose, and the ease and convenience with which registration may be accomplished, but no registrar shall conduct any canvass for the purpose of securing registrations. * * *"

Also:

" * * * In case ample facilities shall not be provided for such registration and the county clerk shall have denied a request for additional facilities, final decision shall be made by the county court or board of county commissioners of each county, provided that any such request shall be signed by not less than 25 resident taxpayers of said county and presented to the county court or board of county commissioners."

The above amendment becomes the law on the 16th day of June, 1945, and it would seem that it was the intent of the legislature to provide the county clerk with express authority to establish additional or ample facilities for the registration of the electors in his county.

Under the well-established rule of statutory construction a power to do an act by an administrative officer must be plainly expressed and is not to be inferred or taken by implication. Applying this rule of construction, the doing of an act may not be prohibited by law, but unless it is authorized by law the administrative agency would not be legally permitted to perform the act.

The 1945 amendment expressly provides that each registrar appointed by the county clerk in one or more precincts in his county, as he may designate, shall maintain a fixed place, conveniently located, for the registration of voters.

---

193

Since receipt of your request for my opinion I have also been requested by the district attorney of Multnomah county for an opinion involving the identical subject, and I am, therefore, trying to answer both requests by this opinion.