Oregon Advisory Opinions May 21, 1958: OAG 58-80 (May 21, 1958)

Oregon Attorney General Opinions

1958.

OAG 58-80.

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You have asked for our opinion on the following problem:

"Our present Yamhill County Judge is a candidate for the position of Director of the Union High School District No. 6, Yamhill County, Oregon, located in Newberg, Oregon. The position of school director has no compensation. If elected to this office, can he legally hold it?"

In your letter you referred to Opinions of the Attorney General, 1946-1948, p. 404, which holds that a county judge may not serve as a member of a rural school board. In the opinion it is said:

"* * * The county judge, however, may not serve as a member of the rural school board. His office is in the judicial department of the state government: Original Article VII, section 1, and Amended Article VII, section 1, Oregon constitution. The school system of the state is in the administrative department of the government. Article III, section 1, of the Oregon constitution, declares that, 'no person charged with official duties' in one department of the state government 'shall exercise any of the functions of another, except as in this constitution expressly provided'. There is no express provision in the constitution which would authorize a judicial officer of the state to exercise functions in the administration of the public schools." (Emphasis supplied)

Similar rulings of the Attorney General are: Opinions of the Attorney General, 1948-1950, p. 219, which holds that Article III, § 1, of the Oregon Constitution, prohibits a justice of the peace from also holding the position of school teacher in the public schools; Opinions of the Attorney General, 1948-1950, p. 342, which holds that a member of the Legislative Assembly may not serve as judge pro tempore; Opinions of the Attorney General, 1950-1952, p. 215, to the effect that a circuit judge is not eligible to be elected to membership on the board of governors of the Oregon State Bar.

That participation in the administration of the school system is a function of the executive department of the state has been affirmed and restated by the Oregon Supreme Court in the recent case of Monaghan v. School District No. 1, Clackamas County, 211 Or. 360. In that case it was held that Article III. § 1, Oregon Constitution, prohibits a member of the legislature from acting as a school teacher while continuing as a member of the legislative body, and in its opinion the court said, at pages 373, 374:

"Is Mr. Monaghan, charged with official duties as a legislator, in his employment as a school teacher, exercising the functions of another department of the government? We think he is and for the reasons which follow.

"Education is a function or duty not regarded as a local matter. It is a governmental obligation of the state. Few of our administrative agencies are creatures of the ORGAnic law. But, as to schools, the constitution mandates the legislature to provide by law 'for the establishment of a uniform, and general system of Common schools.' * * *

"Recently the Supreme Court of the United States has said: 'Today, education is perhaps the most important function of State and local governments.' Brown v. Board of Education of Topeka (1954), 347 US 483, 493, 74 S Ct 686, 691, 98 L ed 873, 880. It is a declaration to which we unhesitatingly subscribe. This judicially-emphasized importance of the place of education in our system of government casts upon us the duty to resolve doubts, if any, about the possibility of incursions of one department of government into the area occupied by education as an administrative function of the executive department in favor of a decisive separation of these powers and with jealous vigilance bar its coercive influence or exercise, di

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rectly or indirectly, when that possibility becomes evident."

It only remains, therefore, to ascertain whether or not the County Judge of Yamhill County is an officer in another branch of the government, namely, the judicial.

In State v. Holman, 73 Or. 18, it was held that the term of office of a county judge is six years since the adoption of the 1910 amendment to Article VII of the Constitution.

In Fehl v. Jackson County, 177 Or. 200, 211, it was ruled that while the county court is no longer a constitutional court, "Nevertheless, the term of his office and the immunity of his salary from reduction during his term of office were protected by Article VII, § 1."

In recent years statutes have been enacted either transferring judicial jurisdiction of county courts to circuit courts or removing all jurisdiction from the county courts of certain counties. ORS 3.130 specifically provides for the transfer of "All judicial jurisdiction, authority, powers, functions and duties" of certain county courts and judges to circuit courts and judges thereof in counties of enumerated population.

It is my understanding, however, that the County Court and the County Judge of Yamhill County are not subject to the provisions of ORS 3.130, and that the said court still exercises certain judicial powers such as are expressed by ORS 5.010 and 5.040, pertaining to probate jurisdiction and other matters.

In Opinions of the Attorney General, 1940-1942, p. 570, the question arose as to whether or not the provisions of chapter 412, Oregon Laws 1941, transferring judicial jurisdiction and authority of the county court, changed the status of the county judges of such counties so that they are no longer to be considered judges and hold their terms for four years only. The former Attorney General referred to § 4 of chapter 412, Oregon Laws 1941, which empowered the county judge to perform functions of the circuit judge in such counties in case of absence, illness or injury of the circuit judge, and concluded:

"From these provisions it is unquestionable that a county judge is still a judge of a court, although he may or may not be called upon to perform any of the judicial duties of such court. * * *"

It is my understanding that the Oregon Supreme Court handed down an oral decision on February 28, 1958, which holds in substance that in the county courts where all judicial jurisdiction, authority and powers have been transferred to the circuit court and judges thereof, the county judge no longer holds his term of office for six years, but merely holds the same for a period of four years.

Nevertheless, it is my opinion that the said decision would not be applicable to the instant situation where the County Judge of Yamhill County without question exercises and retains judicial jurisdiction.

In response to your inquiry it is our opinion that Article III, § 1, Oregon Constitution, prohibits the County Judge of Yamhill County from exercising functions in the administration of the public schools, and that he would, therefore, be ineligible to hold the position of school director at the union high school district.