Oregon Advisory Opinions November 13, 1947: OAG 47-226 (November 13, 1947)

Oregon Attorney General Opinions

1947.

OAG 47-226.

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367

Sheriffs and county clerks are not entitled to fees in addition to salary.

Dear Sir: In your letter of November 7, 1947, you request the opinion of this office as to whether or not the county clerk and sheriff of Clatsop county should be paid fees in addition to their regular salaries for services performed by the county clerk and sheriff under the election code as provided by section 81-205, O. C. L. A., as amended by chapter 37, Oregon Laws 1945.

Section 81-205, O. C. L. A., was originally enacted in the General Laws of 1891 under a title which provided generally for regulating the manner of conducting elections. Section 20 of this law provided a fee for the judges and clerks of the election as well as a fee to the person carrying the poll book, tally sheets, ballot boxes, etc., from the place of election to the clerk's office and also authorized the payment of services by the county clerk and sheriff who, in the judgment of the county court, were entitled to such fees; also such other and necessary expenses incurred by these officers.

Section 87-1049, O. C. L. A., was originally enacted in 1893, and was applicable to all counties of the state. This law set up the salaries of the various clerks and sheriffs and enumerated their allowable expenses and items for which these officers would be entitled to reimbursement or compensation.

In 1903, the legislature enacted a law (S.B. 239, p. 182) increasing the salaries of the clerk and sheriff of Clatsop county and authorizing the appointment of certain deputies. The title to this act did not state that it amended the law of 1893 increasing the salaries of the clerk and sheriff but did in fact amend the law as no salary for these officers was again set forth under the 1893 act, being thereafter established by amendments to the 1903 act, which is now section 87-1005, O. C. L. A., as amended. In 1917 our legislature, chapter 255, Oregon Laws 1917, amended their original act of 1891, now section 81-205, O. C. L. A., by eliminating from this section the provision relating to the payment of fees to persons returning the poll book, tally sheets and ballot boxes, etc., from the place of the election to the clerk's office and enlarged the duties of the county clerk and sheriff. No other amendment was made to this act until 1945, when, by chapter 37, the legislature made no change other than to increase the compensation of the judges and clerks of election.

Inasmuch as section 87-1005, O. C. L. A., as now amended by chapter 282, Oregon Laws 1947, was originally a part of section 87-1049, O. C. L. A., and inasmuch as section 81-205, O. C. L. A., eliminated provisions for the payment of additional fees by an amendment, we are of the opinion that section 87-1049, O. C. L. A., is now controlling and that the county clerk and sheriff are only entitled to such salaries as are provided in section 87-1005, O. C. L. A., as amended, and such expenses as are enumerated in section 87-1049, O. C. L. A., excepting that such clerk and sheriff may receive such "other and necessary expenses as are incurred by such officers in carrying out the provisions of this act" as provided in section 81-205, O. C. L. A., as amended by chapter 37, Oregon Laws 1945. See also, State v. Schanepp, 103 Or. 240 and Northern Counties Trust v. Sears, 30 Or. 388.

We are therefore of the opinion that the county clerk and sheriff of Clatsop county should not be paid fees in addition to their regular salaries for services performed by said clerk and sheriff under the election code.