Oregon Advisory Opinions January 01, 1957: OP 3575

Advisory Opinion Text

Collection Agencies Advisory Board has the authority to determine the quali­fications of applicants for collection li­censes.

Such determination controls action of the Real Estate Commissioner.

The ultimate authority for the deter­mination of rules and regulations per­taining to examinations and licensing rests with the Collection Agencies Ad­visory Board.

No. 3575 January 15,1957 Mr. Ragnor O. Johnson

Real Estate Commissioner Real Estate Department You ask the following questions:

"1. Does the Collection Agency Board have the authority to conduct or assist in conduct­ing the examinations of applicants?

"2. Does the Collection Agency Board have the authority to establish dates or a limitation of the time when examinations must be held?

"3. Does the Collection Agency Board have the authority to approve or disapprove an application and in the instance when the Board disapproves an application, is the Com­missioner required to adhere to the Board's Decision?

"4. Does the Collection Agency Board have the authority to make rules and regulations conveying to the Board the authority to per­form the acts reflected in questions 1, 2, and 3?"

With reference to your first question it appears from your letter that the Col­lection Agencies Advisory Board adopted a resolution calling for the examination of new applicants by both the board and the commissioner.

I call your attention to ORS 697.430, which provides in part as follows:

"The Real Estate Commissioner shall * * * have full power to issue licenses and solicitors' certificates to applicants found qualified by the board * * *. With the approval of a majority of the other members of the board, the commissioner shall establish and enforce rules and regulations as may be reasonable and necessary for the examining * * * of applicants * * *." (Emphasis supplied) The word "qualified" in general means to have complied with the requirements which constitute the conditions prece­dent to the obtaining of an office, ap­pointment or employment: Bozar v. Central Penn. Quarry Stripping and Constructing Co., D.C. Pa. 1947, 73 F. Supp. 803, 811. Successful completion of an examination is one of the qualifica­tions or requirements that must be satis­fied before a license can be issued: ORS 697.110.

Under ORS 697.430, supra, the com­missioner has the authority to issue licenses to those persons "found quali­fied by the board". In my opinion the quoted phrase grants to the board the authority to determine the qualifica­tions of applicants for licenses. This authority necessarily also includes the right to test the applicant's knowledge and aptitude for collection work.

I therefore answer your first question in the affirmative.

The facts with reference to your second question are that by the resolu­tion previously noted the board also re­solved that an examination should be held not earlier than 30 days nor later than 60 days from the original date of application except in an emergency.

Under ORS 697.430, supra, the com­missioner shall establish rules and regu­lations "reasonable and necessary for the examining * * * of applicants". The condition precedent to the establish­ment of any rule or regulation, however, is the "approval of a majority of the other members of the board": ORS 697.430, supra.

I answer your second question there­fore by stating that the ultimate au­thority for the determination of what a particular rule or regulation in regard to examination should be, rests with the Collection Agencies Advisory Board.

Turning now to your third question, the facts are that members of the Col­lection Agencies Advisory Board by letter to you are indicating their approval or disapproval of particular applicants for licenses. As indicated in our answer to your first question, the board has the authority to determine the qualifications of applicants. And when the board finds an applicant qualified for a license, the commissioner has "full power" to issue the applicant a license: ORS 697.430, supra.

It is a general rule of statutory con­struction that where a statute confers upon a public officer a "power" to per­form an act which directly affects the right of an individual, the statute is generally regarded as mandatory, al­though the language is merely permis­sive: 67 C.J.S., Officers, Sec. 113, p. 399.

Under the rule stated above, the com­missioner in my opinion is required to issue a license to an applicant found qualified by the board even though the commissioner has determined that the applicant is not qualified.

For example, if the commissioner de­termined under ORS 697.050 that an applicant did not possess the equivalent of a four-year high school education, but the board determined the applicant did possess such equivalent, the com­missioner would be required under ORS 697.430 to issue a license to the applicant.

If this result produces inconsistency between ORS 697.110 and 697.430, ORS 697.430 being the later provision by amendment (chapter 518, Sec. 2, Oregon Laws 1953) has impliedly repealed ORS 697.110 to the extent of that incon­sistency: Noble v. Noble, (1940) 164 Or. 538, 549; Ulrich v. Lincoln Realty Co., (1947) 180 Or. 380, 397, 403.

So far as the approval by the board of the applications is concerned, there­fore, your third question is answered in the affirmative.

With regard to the disapproval of applications, it is to be noted that ORS 697.430 is affirmative only. That is, the commissioner has the power to issue licenses to applicants found qualified. The statute is silent, however, about the case where the board disapproves an application.

ORS 697.110 provides, however, that:

"* * * commissioner shall * * *

issue licenses to those found qualified to be licensed as provided in this chapter. * * *" (Emphasis supplied) In view of the fact the board under ORS 697.430 has the authority to deter­mine the qualifications of applicants, it is my opinion that if the board has de­termined that an applicant is not quali­fied for a license, the commissioner has no authority to issue a license under ORS 697.110.

With regard, therefore, to the dis­approval by the board of an application, your third question is also answered in the affirmative.

Your fourth question deals with the authority of the board to establish rules and regulations pertinent to the matters discussed in our answers to your first three questions. ORS 697.430 provides in part as follows:

"* * * with the approval of a majority of the other members of the board, the com­missioner shall establish and enforce rules and regulations as may be reasonable and necessary for the examining and licensing of applicants * * *." (Emphasis supplied) In view of this provision and our answer to your second question, your fourth question is answered in the af­firmative.

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