Oregon Advisory Opinions February 23, 1979: OAG 79-28 (February 23, 1979)

OAG 79-28.

Article VI, sec 6, Oregon Constitution, provides in part:

"There shall be elected in each county by the qualified electors thereof at the time of holding general elections, a county clerk

The county clerk (in all but counties having a "home rule" charter under art VI, sec 10) is thus a constitutional officer. If this status explicitly or implicitly included the duty to serve as clerk of the courts then of course such duty could not be transferred elsewhere.

Article VI, sec 8 provides in part:

The only statement in the constitution of what the duties of the county clerk shall be is in art VII (Original), sec 15 which provides:

"A County Clerk shall be elected in each County for the term of Two years, 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:--But whenever the number of voters in any County shall exceed Twelve Hundred, the Legislative Assembly may authorize the election of one person as Clerk of the County Court, and one person Recorder of conveyances.--"

But provisions of the original art VII insofar as they are retained at all were "deconstitutionalized" in 1910 by the adoption by the voters of amended art VII which, while replacing the original (see Or Laws 1911, p. 7), provided in sec 2:

"The courts, jurisdiction, and judicial system of Oregon, except so far as expressly changed by this amendment, shall remain as at present constituted until otherwise provided by law. . . ."

The effect of the above provision on art VII (Original), sec 15 is described in 15 Op Atty Gen 110, 111 (1931) as follows:

"The words 'until otherwise provided by law,' as used in section 2 of this amendment, clearly indicate that the provisions of section 15 of article VII of the original Constitution, if preserved and kept in force at all by the provisions of section 2 of the amendment, should thereafter be subject to the will of the legislature and be controlled by any subsequent valid enactment of the legislature."

This would of course apply to the provision in art VII (Original), sec 15 that the county clerk shall "perform the duties of the Clerk of the Circuit, and County Court," subjecting it to whatever change the legislature wishes to make.

In State Board of Education v. Fasold, 251 Or 274, 445 P2d 489 (1968), it was contended that the office of superintendent of public instruction carried with it certain implied characteristics despite the provision in art VIII, sec 1 that "his powers, and duties in that capacity shall be such as may be prescribed by law . . ." Rejecting cases from other jurisdictions which held that constitutional offices may carry with them implied characteristics, the court said:

We note that the amended art VII puts the establishment of the judicial system of Oregon, except for the Supreme Court, essentially in the hands of the legislature in contrast to the original art VII.

The very constitutional provision - art VII (Original), sec 15 - which included "Clerk of the Circuit, and County Court" in the duties of the county clerk provided for separation of those duties in

counties having more than 1,200 voters. This was invoked for Multnomah County in Oregon Laws 1887, p. 126, repealed in Oregon Laws 1901, p. 282.

The controlling principle here, quoted in the Fasold case, supra, is stated in State ex rel Otto v. School District No. 3, 78 Or 188, 192-193, 152 P221 (1915):

"The legislature of this state is invested with legislative power to the fullest extent, except so far as limited expressly or by necessary implication in the Constitution of the state and of the United States, and in considering the constitutionality of an act of the legislature, the question is not as to the extent of the power that has been delegated by the people to the legislative assembly, but as to the extent of the limitations the people have imposed upon such body . . ."

We conclude that the legislature has the power to transfer the function of the county clerk or clerk of the court to a trial court administrator.