Oregon Advisory Opinions March 20, 1952: OAG 52-30 (March 20, 1952)

Oregon Attorney General Opinions

1952.

OAG 52-30.

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373

Dear Governor McKay: In response to your request of March 18 for our opinion as to the validity of § 87-203, O.C.L.A., as amended by § 1, chapter 31, Oregon Laws 1949, impugned by your correspondent, a candidate for the office of county surveyor of Multnomah county, we advise you that in our opinion a court, in a proper proceeding, would hold the questioned law valid.

Section 6 of Article VI of the Oregon constitution provides that in each county there shall be elected, among other officers, a county surveyor. Section 8 of that article reads as follows:

"No person shall be elected or appointed to a county office who shall not be an elector of the county; and all county, township, precinct, and city officers shall keep their respective offices at such places therein, and perform such duties as may be prescribed by law. " (Emphasis supplied)

It has been urged upon you that the section quoted contains all the qualifications required of a county surveyor, and that the legislature may prescribe no others. The effect of that argument is to require of a county surveyor only that he be at least 21 years of age, a citizen of the United States and a resident of the county concerned and that he be able to read and write the English language.

It must be observed, however, that when sections 6 and 8, supra, were added to the constitution by amendment in 1921 the office and duties of a county surveyor were not new. In Oregon Statutes 1855, pages 573-575, will be found an act of the territorial legislature of January 11, 1855, providing for the election of a county surveyor for a term of three years and prescribing his bond and duties. As evidenced by such law, the pioneers of 1855 demanded of the county surveyor duties obviously requiring some measure of competence and responsibility.

In requiring the county surveyor to perform "such duties as may be prescribed by law," the constitution demands that such officer be able to perform any duty that the legislature or the people reasonably may prescribe. The legislature has seen fit to enumerate in chapter 377, Oregon Laws 1943, minimum requirements of skill and reliability of "professional land surveyors" registered and licensed as such, for the protection of people who may employ them. By specific amendment of § 87-203, supra, it has applied the same requirements to county surveyors, except that any such officer who is a "registered professional engineer" is not required to be a "registered professional land surveyor" as well.

Chapter 377, supra, provides for the examination of professional land surveyors by the state board of engineering examiners. To be admitted to examination it is necessary only that the applicant be (1) over 21 years of age, (2) of good moral character, and (3) experienced in "land surveying for at least six years" and during that period in charge of land surveying, as principal or assistant, for at least one year. In lieu of the third specification, graduation from an engineering school may be substituted for four of the six years of surveying. The subjects covered by the examination, prescribed by § 4 of the act, are "chaining, mapping, surveying and the laws of this state relating to subdividing, platting and surveying." It is obvious that duties which the legislature would prescribe to be performed by a county surveyor would require reasonable proficiency in those subjects.

In Opinions of the Attorney General 1944-46, page 135, it was stated that the qualifications of the county surveyor were (as of 1945) "only those prescribed by Article VI, § 8, of the constitution, and restated in § 87-203, O.C.L.A.". We believe that the statement of qualifications in the law as amended in 1949 are such as a court would term reasonable and within the implication and intendment of § 8, Article VI, of the constitution. In any event, it is the province of a court, and not this office, to say authoritatively whether or not a law, apparently valid, transgresses the constitution.