Oregon Advisory Opinions September 07, 1956: OAG 56-63 (September 7, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-63.

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This is in response to your inquiry concerning the existence of a residence qualification for the elective office of Constable for the Lane County District Court in the City of Eugene. The inability to find a ready and express answer to your question arises from the legislative history of the relevant statutes, which history will now be examined.

Prior to 1947 the elective office of constable existed in each justice of the peace district: §§ 27-217 and 27-253, O.C.L.A. It is interesting to note that no express qualifications for election to the office of constable were set forth in the law even at that date. The qualifications were to be found in § 27-221, O.C.L.A., where, in describing who was eligible for appointment to fill a vacancy, it is stated:

"* * * A person is not eligible to the office of constable unless he have the qualifications prescribed in section 27-207, for a justice of the peace."

In 1947 the Legislative Assembly enacted two pertinent laws. Chapter 589 created district courts in counties hav

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ing a population in excess of 50,000 and less than 20,000, abolished justice of the peace districts in the county seats of such counties, but provided that "all constables in such districts shall be continued as constables of the district court with the same duties, powers and authorities as are now vested in them by law." See § 27 thereof.

Section 12, chapter 564, Oregon Laws 1947, purported to abolish the elective office of constable and to make the office an appointive one. To this end §§ 27-201 to 27-252, O.C.L.A., were repealed, but § 27-253 et seq. were not.

These 1947 laws were interpreted in Opinions of the Attorney General, 1946-1948, pp. 429, 433, and it was held that in so far as Marion County was concerned the elective office of constable for the district court was created by that law. This interpretation applies equally to Lane County and the question as to the constable's qualifications for election arises at this time because chapter 564, Oregon Laws 1947, in repealing most of the sections pertaining to the election of justices of the peace and constables, repealed §§ 27-221 and 27-207, O.C.L.A., supra.

A partial answer to the present controversy is to be found in § 27-253, O.C.L.A., codified now in ORS 51.610, where it states:

"In every city having 25,000 or more inhabitants, there shall be one constable who shall be elected at the election for such office next preceding the expiration of the term of office of his predecessor and who shall hold office for a term of four years. He shall be elected, in the manner now provided by law, by the qualified electors of the city and of such contiguous territory as has been or hereafter may be set off and established by the county court or board of county commissioners as a part of the justice of the peace and constable district comprising such city and such contiguous territory." (Emphasis supplied)

The italicized clause was put into the law by chapter 31, Oregon Laws 1921, amending a 1911 Act, which, at that time, applied solely to Portland. Statutes prescribing that certain acts shall be done "as now provided by law" are generally construed to adopt by reference the law as stated at the time of the passage of the adopting language and do not refer to the law at the time the same might be invoked. State v. Bossa, (1897) 69 Conn. 335, 37 A. 977; People ex rel. Mottinger, (1905) 215 Ill. 256, 74 N.E. 150; Petition of Easby, (1937) 124 Pa. Sup. 578, 189 A. 548.

Applying this rule, it would appear that constables for district courts are to be elected in the same manner provided by law for electing constables in 1921. See Olson Laws, § 3562 et seq., but especially §§ 3569, 3571, 3575, and Opinions of the Attorney General, 1946-1948, pp. 429, 433. Under these sections a person is not eligible for the office of constable unless he possesses the qualifications prescribed for a justice of the peace. These qualifications are enumerated in Olson Laws, § 3569, in these terms:

"A person is not eligible to the office of justice of the peace unless he be a citizen of the United States, a qualified elector under the constitution of this state, and a resident of the precinct wherein he is elected for the period of six months next preceding his election." (Emphasis supplied)

To the extent that the statute refers to being a " resident of the precinct wherein he is elected for the period of six months next preceding his election", the same must be held to be impliedly repealed by chapter 564, Oregon Laws 1947. Sutherland, Statutory Construction, (3d ed.) vol. 1, § 1922.

This conclusion is dictated by the fact that the constable referred to in § 27-253, O.C.L.A., now ORS 51.670, no longer serves a justice of the peace district comprised of precincts but a district court whose jurisdiction is county-wide. Chapter 589, Oregon Laws 1947. Nevetheless, it is my opinion that it was the legislative intention to continue to require that constables have the same residence qualification as a justice of the peace. This is stated in § 4, chapter 564, Oregon Laws 1947, now ORS 51.240:

"A person shall not be eligible to the office of justice of the peace unless he is a citizen of the United States and an elector of the county, and for a period of not less than six months next preceding his election has been, and then is, a resident of the district wherein he is elected." (Emphasis supplied)

A similar residence qualification exists for appointive constables under ORS 51.450.

The "district" wherein the constable is elected has previously been held to be the city wherein the district court is situate. Opinions of the Attorney General, 1946-1948, pp. 429, 433. Therefore, a candidate for the office of Constable for the District Court of Lane County would not be eligible to be elected unless he will have lived in the Eugene constable district for at least six months preceding his election.