Oregon Advisory Opinions March 26, 1962: OAG 62-35 (March 26, 1962)

Oregon Attorney General Opinions

1962.

OAG 62-35.

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You have requested an opinion concerning the creation of county offices under the county home rule amendment, Article VI, § 10, Oregon Constitution, as follows:

"In your opinion does Section 10 permit the creation under the Home Rule Charter, of offices to take the place of the constitutional officers of County Clerk, County Treasurer and Sheriff, or are the offices which may be created under the County Home Rule other than those that are provided in Section 6; namely those which are covered by Section 7?"

Article VI, § 10, providing for county home rule, adopted by the people in 1958, reads as follows:

"The Legislative Assembly shall provide by law a method whereby the legal voters of any county, by majority vote of such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter. A county charter may provide for the exercise by the county of authority over matters of county concern. Local improvements shall be financed only by taxes, assessments or charges imposed on benefited property, unless otherwise provided by law or charter. A county charter shall prescribe the ORGAnization of the county government and shall provide directly, or by its authority, for the number, election or appointment, qualifications, tenure, compensation, powers and duties of such officers as the county deems necessary. Such officers shall among them exercise all the powers and perform all the duties, as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer. Except as expressly provided by general law, a county charter shall not affect the selection, tenure, compensation, powers or duties prescribed by law for judges in their judicial capacity, for justices of the peace or for district attorneys. * * *"

The legislature has complied with the mandate of Article VI, § 10, to provide by law for elections for voting on the adoption, amendment, revision or repeal of county home rule charters. See ORS 203.710 et seq.

Article VI, §§ 6 and 7, are earlier provisions of the Constitution relating to county officers and provide:

"Section 6. There shall be elected in each county by the qualified electors thereof at the time of holding general elections, a county clerk, treasurer and sheriff who shall severally hold their offices for the term of four years.

"Section 7. 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."

In general, the rules governing the construction of statutes are applicable to interpretation of constitutions, but technical and arbitrary rules of construction should be used circumspectly so that the purposes for which the constitutional provisions were enacted will not be defeated: 16 C.J.S., Constitutional Law, § 15; 11 Am. Jur., Constitutional Law, § 49. Constitutional provisions should be construed together and recourse had to the whole instrument to ascertain the intent and meaning of particular provisions: 11 Am. Jur., Constitutional Law, § 53; Kosydar v. Collins, (1954) 201 Or. 271, 282, 270 P. (2d) 132.

An amendment, being the latest expression of the will of the people, ordinarily prevails over conflicting original provisions or earlier amendments of a constitution: 11 Am. Jur., Constitutional Law, § 54; 16 C.J.S., Constitutional Law, § 26; State ex rel. Wernmark v. Hopkins, (1958) 213 Or. 669, 678, 326 P. (2d) 121, 327 P. (2d) 784; Ex parte Kerby, (1922) 103 Or. 612, 616, 205 P. 279, 36 A.L.R. 1451; Hoag v. Washington-Oregon Corp., (1915) 75 Or. 588, 613, 144 P. 574, 147 P. 756. In 11 Am. Jur., Constitutional Law, § 54, p. 663, it is said:

"* * * Amendments, however, are usually adopted for the express purpose of making changes in the existing system. Hence, it is very likely that conflict may arise between an amendment and portions of a Constitution adopted at an earlier time. In such a case the rule is firmly established that an amendment duly adopted is a part of the Constitution and is to be construed accordingly. It cannot be questioned on the ground that it conflicts with pre-existing provisions. If there is a real inconsistency, the amendment must prevail because it is

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the latest expression of the will of the people. In such a case there is no room for the application of the rule as to harmonizing inconsistent provisions. If it covers the same subject as was covered by a previously existing constitutional provision, thereby indicating an intent to substitute it in lieu of the original, the doctrine of implied repeal, though not favored, will be applied and the original provision deemed superseded."

Under this rule, the county home rule amendment, being the latest expression of the will of the people, would prevail over earlier provisions of the Constitution. To the extent the amendment covers and is inconsistent with the same subject matter as contained in Article VI, § 6, the amendment stands in lieu of the earlier provision.

The language of Article VI, § 10, specifically pertinent to the question reads:

"* * * A county charter shall prescribe the ORGAnization of the county government and shall provide directly, or by its authority, for the number, election or appointment, qualifications, tenure, compensation, powers and duties of such officers as the county deems necessary. Such officers shall among them exercise all the powers and perform all the duties, as distributed by the county charter or by its authority, now or hereafter, by the Constitution or laws of this state, granted to or imposed upon any county officer. * * *"

This language evidences an intention that the county charter may provide for all the officers the county deems necessary for the operation of the county government, since "Such officers shall among them exercise all the powers and perform all the duties" granted to or imposed upon any county officer by the charter, or by the Constitution or laws of the state. (Emphasis supplied)

This broad and inclusive language of § 10 brings within its scope the county officers specifically designated in § 6, namely, the county clerk, treasurer and sheriff. Accordingly, the provisions of § 10 supersede the provisions of § 6 where they are inconsistent and to the extent that counties avail themselves of the authority granted by § 10 in adopting county charters.

This conclusion is supported by the provision in § 10 expressly stating that a county charter shall not affect the selection, tenure, compensation, powers and duties of judges, justices of the peace and district attorneys. Had it been intended likewise to exclude county clerks, treasurers and sheriffs from the operation of a county charter, like provision could readily have been made.

A similar question was considered in People v. Curtice, (1911) 50 Colo. 503, 117 P. 357, 359. The question was whether under the Colorado constitutional amendment, granting home rule to the city and county of Denver, the charter could name officers and agencies, other than those provided in the original Constitution or by general law, to discharge state and county governmental duties. It was ruled that, to the extent it undertook to do so, the amendment "being the last expression of the people upon the subject modified the Constitution so far as it applied to the territory in question" and that preexisting provisions became inapplicable therein. See also, City and County of Denver v. Rinker, (1961) --- Colo. ---, 366 P. (2d) 548, 551.

It is, therefore, my opinion the provisions of Article VI, § 10, to the extent a county undertakes to exercise powers granted by those provisions, supersede those of §§ 6 and 7 and that § 10 permits the creation of offices under a county home rule charter to take the place of the offices of county clerk, treasurer and sheriff designated in § 6, Article VI, of the Constitution.