Oregon Advisory Opinions February 11, 1948: OAG 48-28 (February 11, 1948)
Collection: Oregon Attorney General Opinions
Docket: OAG 48-28
Date: Feb. 11, 1948
Advisory Opinion Text
OAG 48-28.
County clerks are entitled to actual traveling expenses necessarily incurred in performance of official duties.
Conveyance of election returns to sheriff is a necessary election expense of sheriff and may be paid for by county court.
Constable of county seat of Marion county is an elective office.
District Attorney, Marion County
Dear Sir: Under date of January 21, 1948, you request my opinion on three questions which I will consider in the order set forth:
Question No. 1. "The County Clerk is required in the proper conduct of his business affairs to use his own transportation in running down boundary lines on precincts, interviewing people in an attempt to secure members for the election board, comparing ballots after the regular hours of work and many other things that are of a necessity done on non-judicial days and other legal holidays. The question now is whether or not a claim for such services and expenses could properly be allowed and a warrant drawn if the claim was allowed for such expenses and services under the provisions of Section 81-205?"
Article VII, section 15 of the constitution of Oregon, so far as pertinent, provides:
"A county clerk shall be elected in each county * * * who shall keep all the public records, books and papers of the county, record conveyances, and perform the duties of clerk of the circuit and county courts, and such other duties as may be prescribed by law; * * *." (Italics the writer's)
Section 81-205, O. C. L. A., was originally enacted as section 20, page 14, General Laws of Oregon, 1891, and was "AN ACT Fixing the Time for Holding Election; Regulating the Manner of Conducting State, District, County and Precinct Elections; Prescribing the Manner of Making Nominations of Candidates; Providing for Printing and Distributing Ballots by Public Officers at Public Expense; * * *".
Section 81-205, O. C. L. A., as amended by chapter 37, Oregon Laws 1945, provides that:
"There shall be allowed by the county court of each county to the several judges and clerks of election four dollars ($4) per day while holding elections, to be paid out of the county treasury; and each county court shall audit and pay out of the county treasury such fees as the services performed by the county clerk and sheriff, under this act, are, in the judgment of the county court, reasonably worth; also such other necessary expenses as are incurred by such officers in carrying out the provisions of this act."
Obviously the duty enjoined upon the county clerk of "carrying out the provisions of this act" (section 81-205, O. C. L. A. as amended), is one within the scope of the constitutional phrase "and such other duties as may be prescribed by law." (section 15, Article VII, constitution of Oregon)
It is to be noted that at the time of the enactment of section 81-205, O. C. L. A. (L. 1891), compensation for the services of county clerks and sheriffs was provided for on a fee basis by the Laws of October 24, 1864, "AN ACT to prescribe the fees of certain officers and persons," which took effect by operation of the constitution, January 20, 1865.
Section 1 of the 1864 act provides that:
"The following fees shall be allowed to the officers and persons hereinafter named, for the services herein specified."
Section 2 of the act provides:
"The fees of the county clerk shall be as follows:",
Section 17 of said act also makes provision for payment to the county clerk of fees for his particular services "when transacting county business," and requires that such fees for such services "must be paid by the state or county as the case may be." (Chapter XVIII, General Laws of Oregon, 1845-1864, compiled and annotated by M. P. Deady.)
County clerks were paid for their services on a fee basis until February 22, 1893, when the legislature passed "AN ACT to Change, in Part, the Compensation, and Mode of Payment thereof, to the County Clerks, Recorder of Convey-County Courts in the State, and of the Sheriffs of the Several Counties; * * *." ances, Clerks of the Circuit Courts and
Section 5 of the act of 1893, as amended, and now codified as section 87-1049, O. C. L. A., provides, so far as pertinent, that:
"County clerks, * * * all deputies, in addition to the compensation for their services provided by law shall receive their actual traveling expenses necessarily incurred while employed in the transaction of county business and the performance of their official duties; such sums shall be audited and paid by the several counties to the respective parties entitled thereto monthly in the same manner that other charges are paid, and no such officer, deputy or employe shall be entitled to receive any fee or compensation for his service other than above provided. * * *" (Italics the writer's)
It is to be observed that in the original enactment (Laws of 1893, page 163), annual salaries were fixed by section 1 for county clerks, section 2 for clerks of the circuit court and county courts where such offices existed separate and apart from the office of county clerk, section 3 for recorders of conveyances and section 4 for sheriffs; and that section 5 of said act contained the following provision:
"The salaries herein provided for in favor of the said county clerks, recorders of conveyances, clerks of the circuit and county courts, and sheriffs, shall be audited and paid * * *; and no one of such officials shall be entitled to receive any fees or other compensation for his services than as above provided. * * *" (section 5, page 166, L. 1893) (Italics the writer's)
Said section 5, now section 87-1049, O. C. L. A., has been amended by the following legislative sessions: 1895, page 80, section 5; 1901, page 285, section 1; 1921, chapter 185; 1927, chapter 99; and 1929, chapter 220.
It is to be further observed that preceding the inhibition "no one of such officials shall be entitled to receive any fees or other compensation for his services than as above provided", no provision was made for expenses, traveling or other kind, for county clerks. Annual salaries only were provided for. Therefore, the phrase in said provision "as above provided" referred only to the annual salaries of such officials. In its present amended form, however, said phrase "above provided" is also preceded by the provision that "in addition to the compensation for their services provided by law shall receive their actual traveling expenses necessarily incurred while employed in the transaction of county business and the performance of their official duties."
In Landis v. Lincoln County, 31 Or. 425, decided October 25, 1897, a case involving a claim of the sheriff of Lin
coln county for services rendered and involving the laws of 1893 above referred to, Mr. Justice Wolverton, speaking for the Court, said at pages 426-428 of the reported opinion:
"* * * By the ordinary acceptation of the term 'fees,' as heretofore and now used in the statute, we understand it to signify compensation or remuneration for particular acts or services rendered by public officers in the line of their duties, to be paid by the parties, whether persons or municipalities, obtaining the benefit of the acts, or receiving the services, or at whose instance they were performed ( Musser v. Good 11 Serg. & R. 247; Tillman v. Wood, 58 Ala. 578), while the term 'salary' denotes a recompense or consideration to be paid a public officer for continuous, as contradistinguished from particular, services, and may be denominated 'annual or periodical wages or pay' ( Cowdin v. Huff, 10 Ind. 83: Black. Law Dictionary), Lexicographers and some authorities class 'salary' and 'wages' as synonymous (See Webster, and Rapalje & Lawrence's Law Dictionary, and Commonwealth v. Butler, 99 Pa. St. 535); but not so with the terms 'salary' and 'fees,' as they appear generally to be distinguished very much as is indicated above. But the interpretation of the acts in question does not depend so much upon the technical definition of the terms as upon the sense in which they were used by the legislature. The real intention of that body in calling them into requisition as agencies for the expression of its legislative will ought to and will control. The term 'fees' is not so inflexible as that it may not have been used in the sense of 'salary' or 'wages'. We may cite an instance. Section 2364, Hill's Ann. Laws, provides that the fees of the assessor shall be $3 per day, in certain counties $4, and that in Multnomah County he shall receive $6,000 per annum for his services.
"Now, it is evident that the legislature meant by the use of the term 'fees,' in that section, to signify the compensation to which the assessor should be entitled. But, in order to determine the legislative intent, we must look to the conditions of the old law touching the compensation of sheriffs, and the circumstances and conditions attending the enactment of the laws we are called upon to interpret. * * * After the bill passed the house, however, the bill for a change in the fee system was duly adopted at the same session, which repealed the old law in so far as it affected the manner in which the sheriffs of all the counties in the state should be compensated for their services as public officers: Northern Counties Trust v. Sears, 30 Or. 388 (35 L. R. A. 188, 41 Pac. 931). * * *"
What was said in the Landis case, above-quoted, concerning compensation for the services of the sheriff under the act of 1893, applies with like effect to compensation of county clerks. This is made clear from the holding in Northern Counties Trust v. Sears, cited in the Landis case, in which it is said, at page 397 of the reported opinion:
"The general tenor of the language employed indicates very clearly that the legislature was dealing with the clerks and sheriffs of all the counties of the State, without excepting any from its purview, * * *."
Fees or salary may be collected by a public officer only in the event that the law provides therefor and fixes the amount thereof and may be retained by him only in the event that the law authorizes him to do so and clearly fixes the amount to be retained by him. Duclos v. Harris County (Tex.), 291 S. W. 611.
No officer is permitted to collect fees or compensation unless the same are provided for and the amount thereof declared by law. Statutes prescribing fees for public officers are strictly construed and fees by implication are not permitted. McCalla v. City of Rockdale (Tex.), 246 S. W. 654, 655.
The recognized rule of statutory construction is that a public officer can not demand any compensation for his services not specifically allowed by statute, and that statutes fixing fees and such compensation must be strictly construed. Holman v. City of Macon (Mo.), 137 S. W. 16, 17; State ex rel. Paterson (Mo.), 132 S. W. 1183, 1185; U. S. v. Shields, 153 U. S. 88, 38 L. ed. 645, 647.
When compensation of public officers is left to construction, it must be most favorably construed in favor of the government. Eastland County v. Hazel (Tex.), 288 S. W. 518.
Based upon the foregoing authorities, it is my opinion that your first question should be answered in the negative as to compensation for services, but in the affirmative as to actual traveling expenses necessarily incurred while employed in the transaction of county business and the performance of official duty.
Question No. 2. "* * * whether or not mileage is allowable to the member of the election board who delivers the ballot boxes and election returns to the Sheriff pursuant to the inference contained in Section 81-1619?"
Section 81-1619, O. C. L. A., so far as pertinent, provides that:
"At the time the sheriff delivers the ballot boxes and other election supplies to the judges and clerks of election in each election precinct, he shall make in duplicate a certificate or notice in writing specifying the place where the ballot boxes and election returns shall be delivered to him * * * when the ballot boxes and election returns have been delivered to the sheriff, or his duly authorized representative, at the place designated in such notice, he shall deliver the same, * * * to the county clerk as soon as possible in the due course of business." (Italics the writer's)
The section above quoted from was added to the election laws by chapter 255, Oregon Laws 1917, which was "AN ACT * * * relating to the custody and control of ballot boxes and election
supplies, and to provide for the return of such ballot boxes and supplies to the county clerk."
Said act at the same time amended what is now section 81-205 and section 81-1619, O. C. L. A. (sections 17 and 20 of the original election laws of 1891). The previous procedure requiring some member of the election board to deliver the election returns directly to the county clerk was changed. The other pertinent change made by the 1917 act was to delete from what is now said section 81-205, the phrase "and to the person carrying the poll-book, tally-sheet, ballot-boxes and ballot-stubs and other property from the place of election to the clerk's office, the sum of ten cents per mile for going and returning, * * *."
Section 81-1618, O. C. L. A., provides in part:
"One set of the tally sheets and the poll book which was kept by the second clerk, ballots and stubs, ballot boxes and remaining supplies, shall be forthwith conveyed by one of the judges or clerks of election, to be agreed upon for that purpose by the judges, to the county sheriff of the county at such a place as the county sheriff may designate. * * *" (Italics the writer's)
It must be presumed that the legislature was aware of existing statutes and the rules of statutory construction, and was familiar with the circumstances and conditions of the subject with which it was dealing. Vol. 2, Sutherland, Statutory Construction (3) section 4510.
It therefore seems obvious that the legislative intent was, instead of having the ballot boxes and election returns delivered directly to the county clerk by a member of each election board, to place upon the sheriff the sole duty and responsibility to see that the proper election returns were delivered into the hands of the county clerk "as soon as possible" and in order to accomplish that purpose it has provided that such returns should be made "to the county sheriff of the county at such a place as the county sheriff may designate" (section 2, chapter 255, Oregon Laws 1917, now section 81-1618, O. C. L. A.), thereby making the member selected by the board for that purpose, directly responsible to the sheriff. Therefore, the services of the election board member are the services of the sheriff to be compensated for "in the judgment of the county court" in whatever sum said county court may determine them to be "reasonably worth". (section 81-205, O. C. L. A.)
It is my opinion, in answer to your question No. 2, that the compensation for a member of the election board who conveys the election returns to the sheriff to be delivered by the sheriff to the county clerk is a necessary election expense of the sheriff of the county which may be paid for by the county court.
"Question No. 3. "* * * Is the position now occupied by the Constable an elective office or an appointive office? This question is limited to the Salem Constable as to this County."
Chapter 589, Oregon Laws 1947, creating district courts in certain counties of the state, provides by section 2 thereof, that it shall be the duty of the county court---
"* * * whenever the court shall deem it necessary, to set off and establish or modify the boundaries of the justice of the peace and constable districts within the county; provided, however, that within the corporate limits of all cities which are the county seats of the counties, in counties having over 50,000 and less than 200,000 population within the state of Oregon there shall be no justice of the peace districts." (Italics the writer's)
Chapter 564, Oregon Laws 1947, "AN ACT to provide for and regulate the offices of justice of the peace and constable," provides among other things, that the county court---
"* * * whenever such court or board shall deem it necessary in the public interest so to do, shall set off and establish, or modify the boundaries of, justice of the peace districts within the county; provided, that in every county having a district court no more than five such justice of the peace districts shall be set off or established or permitted to remain in existence, and then only outside the county seat; * * *." (Italics the writer's)
Section 12 of said act provides:
"The elective office of constable hereby is abolished, and the appointive office of constable hereby is created."
Section 13 provides in part:
"The county court or board of county commissioners, as the case may be, may appoint a constable of and for any justice of the peace district in the county, to hold office for a term of four years unless sooner removed as hereinafter provided. Such appointment shall be in writing filed with the county clerk. * * *" (Italics the writer's)
Section 24 declares:
"That sections 27-201 to 27-252, inclusive, O. C. L. A., as amended, and all acts and parts of acts in conflict herewith hereby are repealed."
It is to be noted that said chapter 564 makes no reference whatsoever to section 27-253, O. C. L. A., which contains the following provisions:
"There shall be in every city of the state of Oregon having 25,000 or more inhabitants, one constable who shall be elected at the election for such office next preceding the expiration of the term of office of their respective predecessors, by the qualified electors of said city, * * * as shall have been or may be hereafter set off and established by the county courts of the several counties of the state * * *."
The city of Salem, therefore, being the county seat of Marion county and a city having "25,000 or more inhabitants" the provisions of the above-quoted section (section 27-253) govern in the selection of a constable for said county seat unless it can be said that said section is repealed by implication.
In the case of Messick v. Duby, 86 Or. 366, the Court said on pages 369 and 370 of the reported opinion:
"In the determination of the question of whether or not a former statute has been repealed by a later one, the intention of the lawmakers controls the courts, the same as in the construction of a law. It is a universal rule that a later act does not by implication repeal a former, touching the same subject matter, where there is no repugnancy between them and both can be sustained and enforced. Repeals by implication are not favorites of the law and if it is not perfectly manifest, either by repugnancy which cannot be reconciled, or by some other means clearly showing the intent of the lawmakers to abrogate the former statute, both must be held to be operative: State v. Benjamin, 2 Or. 125, 126; Strickland v. Geide, 31 Or. 373 (49 Pac. 982); Cunningham v. Klamath Lake R. Co., 54 Or. 13, 20 (101 Pac. 213, 1099); Booth's Will, 40 Or. 154, 156 (61 Pac. 1135, 66 Pac. 710); Sandys v. Williams, 46 Or. 327, 331 (80 Pac. 642); Pacific Elevator Co. v. Portland, 65 Or. 349, 387 (133 Pac. 72, 46 L. R. A. (N.S.) 363); DuBois Lumber Co. v. Clatsop County, 74 Or. 409 (145 Pac. 653). * * *"
In 2 Sutherland, Statutory Construction (3rd), section 5002, it is said on pages 482 and 483, in construing an ambiguous statute:
"The courts will look at the contemporary history of the statute and the historical background of the statute to obtain aid in interpreting the statute. These aids will show the circumstances under which the statute was passed, the mischief at which it was aimed and the object of the statute. * * *"
The legislature, in the enactment of the two 1947 statutes under consideration, is presumptively charged with the knowledge that in 1947 and for many years prior thereto the only district court within the state of Oregon was and had been in the city of Portland, Multnomah county, Oregon, and that a constable was the service officer of that court selected by a vote of the people under the provisions of the above-quoted section 27-253.
In looking to the historical background of these statutes, the legislative record discloses that Senate Bill 383, now chapter 564, Oregon Laws 1947, which provided both in the title and the body of the original bill for the repeal of section 27-253, O. C. L. A., was introduced in the senate March 1, 1947 and referred to the committee on revision of laws; that on March 14, 1947, that committee reported the bill back recommending its passage, with an amendment deleting said section 27-253 therefrom. The bill as amended was passed by both houses, approved by the governor and filed in the office of the secretary of state on April 19, 1947.
The legislative record also shows that House Bill 417, now chapter 589, Oregon Laws 1947, was introduced on February 25, 1947 and was passed by both houses, approved by the governor and filed in the office of the secretary of state April 21, 1947. Thus it appears that both enactments were being considered by the legislature at the same time.
It follows, that the city of Salem being the county seat of Marion county and having a population of 25,000 or more and a district court pursuant to chapter 589, Oregon Laws 1947, it was the intent of the legislature that the provisions of said section 27-253, O. C. L. A., should apply, and that the office of constable for said district court should be elective.
It is my opinion, therefore, that the office of constable in the county seat of Marion county, the city of Salem, is elective, and that said office is to be filled by the electors "within the corporate limits" of said city.