Oregon Advisory Opinions January 01, 1952: OP 1997

Advisory Opinion Text

A county clerk may not legally refuse to sell game licenses.

No. 1997 January 2, 1952 Honorable L. G. English

District Attorney, Lincoln County

Dear Sir: In your letter of December 29, 1951, you state that due to extra work in his office and the lack of sufficient help, the county clerk of Lincoln county has refused the sale of game licenses for the year 1952, and you ask to be advised as to whether or not "he can legally refuse to act as agent of the Oregon state game commission in selling game licenses."

Your inquiry appears to be answered by Sec. 82-402, O.C.L.A., which provides in part:

"Upon application and upon payment of the license fee, as herein provided, any per­son, authorized by this act to hunt or angle, * * * who shall apply in person, or who shall send an application to the county clerk, * * * an annual license, * * * shall be issued to such person by the county clerk or other person authorized to issue licenses or li­cense blanks furnished by the state game commission. * * * Under the supervision and direction of the state game commission any person named by the state game commission may be authorized to issue hunters' and/or anglers* licenses according to the manner provided in this act." (Emphasis supplied) Section 82-407, O.C.L.A., provides that:

"All moneys collected by the county clerks for the sale of fishing and hunting licenses shall, on the last day of every month, be forwarded to the State Game Commis­sion, * * *." (Emphasis supplied) Section 82-409, O.C.L.A., provides that "County clerks shall also on the last day of every month send a report of all moneys collected and forwarded to the State Game Commission under the provisions of this act, and every county clerk shall on the fifteenth day of December of every calendar year for­ward all unissued licenses and duplicates or stubs to the State Game Commission." (Em­phasis supplied) Under Sec. 82-411, O.C.L.A., any county clerk or any person authorized to issue hunters' or anglers' licenses who fails to turn over all moneys received from the sale of such licenses shall be deemed guilty of a misdemeanor.

Section 6, chapter 275, Oregon Laws 1941, as amended by chapter 78, Oregon Laws 1949, provides in part:

"* * * The Oregon state game commission or a duly authorized agent of said commis­sion, under such rules and regulations as may be made by said commission, is author­ized to issue licenses according to the pro­visions of this act and collect the fees prescribed by law therefor; * * *"

No specific reference is made in the last mentioned chapter to the issuance of licenses by county clerks although an earlier law, Sec. 33 of chapter 370, Oregon Laws 1931, contained a provision that 'the county clerk of each and every county of the state of Oregon hereby is authorized to issue such licenses accord­ing to the provisions of this act." This provision was omitted when the section was amended by chapter 40, Oregon Laws 1939, (codified as Sec. 82-401, O.C. L.A.). However, regardless of the last mentioned change in the law relating to the issuance of game licenses, we are of the opinion that the duty is still imposed upon county clerks to issue game licenses, particularly in view of the provisions of Sec. 82-401, supra. It is a well established legal principle that repeals by implication are not favored in the law, and were it the intention of the legislature to relieve county clerks of the duty of issuing game licenses, it could have done so by an express repeal of the sections first above quoted.

In Opinions of the Attorney General, 1934-1936, p. 542, this office pointed out that licenses are to be issued by the county clerks, but that * * They do not, however, issue such licenses as agents of the game commission, but in their official capacity of county clerks, and they may act by their deputies. * * *"

See also Opinions of the Attorney Gen­eral, 1946-1948, p. 164, where it was held that county clerks shall not charge the game commission for the issuance of game licenses.

In response to your inquiry it is our opinion that the county clerk of Lincoln county may not lawfully refuse to sell game licenses. It is made the statutory duty of the county clerks to issue such licenses.

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