Oregon Advisory Opinions October 01, 1976: OAG 76-104 (October 1, 1976)

OAG 76-104.

ORS 247.070 provides that "no person may register within 30 days(fn1) preceding any election held throughout the county in which he resides for the purpose of voting at such election." However, ORS 247.165 enables persons who are not already properly registered--and who, because less than 30 days remain until the next ensuing election, cannot become actually "registered" prior thereto--to nevertheless vote in that election by obtaining special "certificates of registration." Such

special certificates properly obtained within 30 days of the election, even on "election day" itself, enable such persons to subsequently vote therein. 37 Op Atty Gen 1135 (1976).

We conclude that the pattern of ORS ch 247 shows that the legislature did not intend the issuance of special certificates of registration be a process undertaken outside the office of the county clerk.

ORS 247.165 provides:

"(1) An application for a certificate of registration may be made to the appropriate county clerk in person or in writing. If the person has changed his residence and has not reregistered, the application shall contain the former and new residence address of the person and shall be signed by the person using the same name as appears on his official registration card. If the person has not registered to vote, the application shall contain the information required by ORS 247.121.

"(2) Upon receipt of an application for a certificate of registration, the county clerk shall immediately cancel the applicant's current registration. The county clerk need not mail the certificate of registration to the applicant if the application is received during the last five days before the election. In order to vote at any election subsequent to the election for which the certificate was issued, the person must register or reregister as provided in ORS 247.031. A registration form delivered to the county clerk 30 or less days before an election or a registration form delivered by mail with a postmark indicating it was posted 30 or less days before an election shall be an application for a certificate of registration. That same registration form also shall be a registration form or reregistration form to register the applicant to vote at any subsequent election.

"(3) Certificates of registration shall be issued only by the county clerk."

The implication of ORS 247.165 is that the legislature desires that there be a centralization within the county clerk's office of recording of the issuances of special certificates. In this regard, we note especially the requirement that if the registrant had been previously registered at a different address, the county clerk must immediately cancel the applicant's "current" registration. Also consistent with this view is the provision in subsection (3) that the certificate of registration shall be issued only by the county clerk. While this latter provision was probably intended to make it clear that registrars appointed under ORS 247.011 are not authorized to issue certificates of registration under ORS 247.165, nevertheless it confirms the idea that the process of issuing such certificates be centralized. Further consistent with our conclusion is the implication behind the provision that "[t]he county clerk need not mail the certificate of registration to the applicant if the application is received during the last five days before the election." Clearly this provision assumes that except in the situation stated, the certificate is mailed and it obviously must mean mailed from the office of the county clerk where the necessary pertinent records are kept. The fact that the clerk "need not mail" the certificate in a given period does not alter the concept of the procedure as one which takes place only in the clerk's office, no matter when.

We find no basis in the statutes for concluding that certificates of registration may be issued from any place other than the office of the county clerk where the necessary records

are kept for the clerk and his deputies to carry out the provisions of the statute.

The statement that certificates "shall be issued only by the county clerk" includes deputies. The Oregon Supreme Court, in Peterson v. Lewis , 78 Or 641, 655, 154 P 101 (1916) using a quotation with approval, has said:

". . . A 'deputy' is defined in 13 Cyc 1043, as follows:

" 'One appointed as the substitute of another, and empowered to act for him in his behalf or on his behalf, one who is appointed, designated or deputed to act for another; . . . .' "

It is here fitting to resolve a possible misunderstanding which could result from reading the statutes applicable to deputies of county clerks. Two statutes, seemingly redundant in part, indicate that a county clerk is to have only one deputy.

ORS 204.625 provides:

"Each county clerk may have a deputy to be appointed by such clerk in writing, and to continue during his pleasure. Such deputy has the power to perform any act or duty relating to the clerk's office that his principal has, and his principal is responsible for his conduct."

ORS 204.630 provides:

"The county clerk may appoint a deputy, who shall hold his office during the pleasure of the county clerk. Such appointment shall be in writing, filed and recorded in the office of the county clerk. The county clerk so appointing and his sureties shall be responsible for the faithful performance of his duties by such deputy.

"(2) In the absence or inability of the county clerk to perform the duties of his office, the deputy shall perform such duties

during the continuance of such absence or inability."

The first statute, ORS 204.625, was enacted in 1862, a time when it may be concluded that no more than one deputy clerk was necessary in any Oregon county. The statute possibly was enacted because of the holding of the Oregon Supreme Court in State ex rel Blanchard v. Smith , 1 Or 250, 251 (1859) that absent such a law a county clerk could not appoint a deputy:

". . . At common law it is not doubted that an officer, whose duties were purely ministerial, could appoint a deputy; but it is conceived that county clerks, under the statutes of this State, are clothed with powers and duties not only ministerial, but quasi-judicial -- such as administering oaths, taking depositions, acknowledging deeds, &c. To delegate such powers he must be expressly authorized by statute. It is enough to say that there is no such express power conferred by law upon our county clerks."

The second statute, ORS 204.630, was enacted to apply to the recorder of conveyances. In 1971 that office was abolished and legislative counsel was authorized by Oregon Laws 1971, ch 88, § 3 to substitute a reference to the county clerk wherever the recorder of conveyances was referred to. As such, the statute's continuing existence should be regarded as a meaningless oversight.(fn2)

Returning to a consideration of ORS 204.625, supra, we must consider any implication that there is to be only one deputy county clerk to be superseded by Oregon Laws 1919, ch 168, which provided that the governing body of the county shall fix the

number of deputies and employes of county officers, to be appointed by and serve at the pleasure of such officers. This law was codified as ORS 204.605 which was repealed by Oregon Laws 1953, ch 306, § 18. Section 9 of the 1953 law enacted ORS 204.601 which provides:

"(1) The county court or board of county commissioners of each county shall fix the number of deputies and employes of county officers whose compensation is to be paid from county funds.

"(2) All such deputies and employes shall be appointed by such county officer, and shall hold office during the pleasure of the appointing officer."

The number of deputy clerks is therefore not limited by ORS 204.625, the 1862 law.

Thus clarified, we conclude that the law authorizes deputies of a county clerk, whatever their number, to issue certificates of registration under ORS 247.165 only at the office of the county clerk.

1 Effective January 1, 1978, the time period will be 20 days. Or Laws 1975, ch 678, § 26.

2 The same situation exists regarding ORS 205.520 and 205.530, each prescribing the location of the office of the county clerk. The latter was enacted for the office of the recorder of conveyances.