Oregon Advisory Opinions April 15, 1955: OAG 55-41 (April 15, 1955)

Oregon Attorney General Opinions

1955.

OAG 55-41.

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This is in response to your oral request for an opinion on the effect of the adoption of the proposed amendment to § 6, Article VI, Oregon Constitution, contained in House Joint Resolution No. 7.

Section 6, Article VI, 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, Treasurer, Sheriff, Coroner and Surveyor, who shall severally hold their offices for the term of four years." (Emphasis supplied)

House Joint Resolution No. 7, if approved, would delete all reference to the county coroner and surveyor and you ask if the effect of such action would be to repeal all legislation pertaining to these offices and in effect leave the county without a coroner or surveyor.

Sutherland in discussing the implied repeal of statutes by the adoption of a constitutional amendment states:

"* * * The repeal is implied where a provision within the newly adopted constitution conflicts with prior legislation in such a manner that the statutory provision would violate the constitution if allowed to stand. Likewise, where an amendment to the constitution predicates a conflict with existing legislation, the inconsistent statutory provisions are repealed by implication. A repeal by implication ariser in a third instance where the repeal of a constitutional amendment withdraws the authority for the statutory enactments promulgated to enforce the mandate of the constitution. In every instance where the repeal is one arising by implication, the constitutional provision or amendment must predicate an irreconcilable conflict and also must clearly show that it was intended to affect existing legislation as well as to prospectively operate upon future legislation." Sutherland Statutory Construction, 3rd Ed., Vol. 1, § 2025, p. 497. (Emphasis supplied)

In this case the questions arising upon the repeal of all reference to the county surveyor and coroner from § 6, Article VI, are that of the constitutionality of existing statutes and the implied repeal of the statutes providing for such offices. In regard to the former, your attentior

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is called to § 7, Article VI, which provides:

"Such other county, township, precinct, and City officers as may be necessary, shall be elected, or appointed in such manner as may be prescribed by law." (Emphasis supplied)

Thus it is clear that even if such offices are not recognized under § 6 the legislature would have the express power, under § 7, Article VI, to create them and it is my opinion that existing statutes providing for the same would not be rendered unconstitutional but would still have an express constitutional basis.

With regard to the possibility of implied repeal the case of Swanson v. State, (1937) 132 Nebr. 82, 271 N.W. 264, is directly in point. That was a declaratory judgment proceeding wherein the commissioner of public lands and buildings sought to have his legal rights and official status declared in view of an amendment to § 1, Article IV, Nebraska Constitution, which deleted reference to the commissioner of public lands and buildings from the enumeration of the executive officers of the state.

The court stated:

"* * * The adopted amendment is in the exact language of the original section except that the name 'commissioner of public lands and buildings' is left out. We are of the opinion that these facts indicate a clear intent to eliminate the commissioner of public lands and buildings as a constitutional executive officer of this state. * * *

"The question immediately arises whether the office of commissioner of public lands and buildings was completely abolished by the constitutional amendment. It will be noted that the amendment contains no specific words purporting to abolish the office. We fail to find any language from which such an intent can be implied. The removal of the name of 'commissioner of public lands and buildings' from the list of constitutional executive officers of the state certainly cannot of itself amount to an abolition of the office unless reasonable intendments of that nature can reasonably be drawn from what was done.

"* * * We must presume that the people, in amending the Constitution, had in mind the fact that many existing statutes were in force placing duties and obligations upon the commissioner of public lands and buildings. In view of the fact that the amendment contained no language from which an intent can be drawn to abolish the office in its entirety or to repeal existing statutory law pertaining to the office, which said statutory law standing alone is sufficient to create the office of commissioner of public lands and buildings, we must necessarily conclude that the office is still existent as an executive office of the state with the duty imposed of performing all functions required of him by the statutes of this state. The amendment under consideration is clearly self-executing to the extent of depriving the office of its constitutional character. But, to accomplish the complete abolition of the office, further legislative action in that direction will be required subject only to constitutional limitations placed upon the legislature with reference thereto."

The above application of the rules of constitutional construction are persuasive and it is my opinion that existing statutes providing for a county coroner and surveyor would not be impliedly repealed by the adoption of House Joint Resolution No. 7, but would have a continuing effect. The legislature could, however, by the addition of appropriate language clarify its intention in this regard.

It is my duty to call to your attention another problem that is presented by House Joint Resolution No. 7 which deserves your consideration. It is understood that one of the reasons underlying the amendments contained in House Joint Resolution No. 7 is to remove county surveyors and coroners from the effect of the Oregon Supreme Court's decision in State ex rel. Powers v. Welch, (1953) 198 Or. 670.

This decision held that the qualifications for county surveyor were contained in § 8, Article VI, and could not be varied by a statute requiring a county surveyor to be a registered professional engineer or surveyor.

It is doubtful if the proposed amendment would accomplish this result. If § 6, Article VI, is amended to delete reference to the county surveyor and coroner, they would still be county offices under § 7, Article VI, which is set forth above. Section 8, Article VI, prescribes the qualifications for any or all county offices in the following language:

"No person shall be elected, or appointed to a county office, who shall not be an elector of the County; * * *"

Thus it would appear that the qualifications for a county office are prescribed by § 8, without regard to enumeration of some county offices in § 6 and the decision in the Powers v. Welch case would still be applicable.

This interpretation is supported by State ex rel. v. Stevens, (1896) 29 Or. 464. This decision arose at a time when only male persons were qualified electors under § 2, Article II, Oregon Constitution.

The Legislative Assembly by the statutes of 1893, page 62, authorized "Women over the age of 21, who are citizens of the United States and of this state, * * *" to be eligible to an educational office in this state. The defendant, a female, was elected county school superintendent and the incumbent challenged

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her right to the office, contending that the statute was unconstitutional.

Referring to § 8, Article VI, which declares that the only qualification for a county office shall be that one is an elector of the county, the court said:

"* * * Hence it necessarily follows that none but male citizens can be elected or appointed to county offices. Now the office of superintendent of common schools, although not so mentioned in the constitution, was, at the adoption of that instrument, and ever since has been, and is now, plainly and unmistakably a county office. * * * It therefore follows, that, * * * we have no alternative but to declare that under the provisions of that instrument as it now exists, they are ineligible to the office in question, and that the act of eighteen hundred and ninety-three, so far as it conflicts with the constitution, is void."

The Stevens case is clear authority that even though a county office is not expressly referred to in § 6, Article VI, that the qualification for such office is governed by § 8, which qualification cannot be varied by an Act of the legislature.

It is thought that inasmuch as the limited amendment contained in House Joint Resolution No. 7 will probably not accomplish the result desired, that it would be appropriate to consider including in House Joint Resolution No. 7 those additional amendments that will enable the legislature to have the power they desire.