Oregon Advisory Opinions July 24, 1943: OAG 43-146 (July 24, 1943)
Collection: Oregon Attorney General Opinions
Docket: OAG 43-146
Date: July 24, 1943
Advisory Opinion Text
OAG 43-146.
Secretary of State.
Dear Sir: You have referred me to chapter 440, Oregon Laws, 1943, known as the community property law, and requested my opinion as follows:
"* * * whether counties are entitled to fees for filing and indexing certificates of community property elections transmitted to county officers by the secretary of state as provided by section 2 of said act.
"If you find it to be the intent of the act that county clerks or recorders shall be paid for filing these certificates, would the filing fee for each certificate be 50c (Section 87-905, O. C. L. A.), and should this fee be considered an expense of administering the act, to be paid from the moneys received from parties filing community property elections?
"If fees are payable to the counties, are they to be remitted quarterly and in accordance with the procedure provided by section 91-1003, O. C. L. A.?"
Section 2 of chapter 440, Oregon Laws, 1943, provides:
"Election to come under the terms of this act shall be by a written instrument signed and acknowledged by both husband and wife, and shall state in substance that they desire and elect to avail themselves of the act and have it apply to them and to their property. Acknowledgments shall be in the form of and may be made before any officer qualified by law to take acknowledgments to conveyances of real property. Said instrument, together with a fee of twenty-five dollars ($25) shall be presented to the secretary of state, who shall thereupon file said instrument, properly index the same in a book kept for that purpose and transmit to the county clerk or county recorder of conveyances, as the case may be, of each county in the state the certificate of said secretary of state, setting forth the nature of said instrument, the names of the parties thereto, the date thereof and the date of the filing thereof in the office of said secretary of state. Upon receipt of such certificate it shall be the duty of the county clerk or county recorder of conveyances, as the case may be, to file the same and to properly index the same in a book kept for that purpose. The fact of said election shall thereupon become public notice. The secretary of state shall pay the expenses of administering this act from the fees received under the provisions hereof and shall pay the balance, if any, of such fees to the state treasurer for the benefit of the general fund of the state."
The secretary of state is authorized to pay the expenses of administering the act from the fees received by him. The county clerks and recorders of the state in filing and indexing the certificates are engaged in administering the act, and the expense involved in performing this function is an expense incident to the administration of the act. It follows that the secretary of state is authorized to pay the county clerks and recorders for such expense.
Section 87-905 (3), O. C. L. A., authorizes county clerks or recorders, as the case may be, to collect a fee of fifty cents for "filing and making entry when required by law of a bill of sale, chattel mortgage, or other instrument in writing required or permitted by law to be filed * * *."
This same provision is found in section 4, General Laws of Oregon, 1903, page 324. Although this section has been omitted from the code, it remains in effect.
Whether section 87-905 (3), O. C. L. A., and section 4 of the 1903 act, are applicable to all counties of the state is doubtful. Nevertheless, these sections afford a practical legislative standard which should govern as to the amount to be paid the county clerks and recorders under chapter 440, Oregon Laws, 1943, to meet their expense in indexing and filing the certificates.
Section 91-1003, O. C. L. A., provides the time and manner of payment of fees to counties by state agencies, and is applicable to the fees in question.
It is, therefore, my opinion that the secretary of state is authorized to pay the county clerks or recorders of conveyances, as the case may be, the sum of fifty cents for each certificate of community property election transmitted by him under chapter 440, Oregon Laws, 1943, and that the time and manner of such payments is governed by section 91-1003, O. C. L. A.