Montana Attorney General Opinion 16-186

Opinion No. 186. County Surveyor-County Assessor- Consolidation of Offices-Quali- fications of Office-County Commissioners. HELD: 1. The person elected to the consolidated offices of County Sur- veyor and County Assessor must have all the valid qualifications for filling such offices before consolidation thereof became effective. 2. The constitution having pre- scribed the qualifications required of a County Surveyor, the legislature was without power to supplement them by such legislation as R. C. M. 4835. October 14, 1935. Mr. Lee Butler Farr County Attorney Sidney, Montana Your letter of October 3 is as fol- lows: "The county commissioners of Richland County are considering the matter of consolidating the offices of county surveyor and county as- sessor. "They desire to know if this is done whether or not the candidate for such consolidated office must have the qualifications of a county surveyor under Section 4835 of the Revised Codes of 1921." Section 5 of Article XVI of the con- stitution, as amended by vote of the people at the general election held on November 6, 1934, provides that the board of county commissioners may consolidate any two or more OPINIONS OF THE ATTORNEY GENERAL 195 of the following county offices, name- ly, county clerk, sheriff, treasurer, assessor, county superintendent of schools, county surveyor, coroner and public administrator, and combine the powers and duties of the offices so consolidated. The provisions of this section are supplemented by the pro- visions of Chapter 125, Laws of 1935. When two or more offices are con- solidated under a single officer he is then possessed of the powers and must perform the duties that go with such offices, and while diligent search on our part has not revealed any ju- dicial authority on the point, still it is reasonable to assume that the per- son elected to the consolidated of- fices must have all the valid qualifi- cations required for filling such of- fices before consolidation thereof be- came effective. Section 4835, Revised Codes of 1921, is as follows: "A county surveyor shall be a professional engineer, not less than twenty-two years of age, who shall have been in active practice of his profession for at least three years, and who shall have had re- sponsible charge of work as principal or assistant for at least one year; graduation from a school of engineer- ing shall be considered as equivalent to two years of active practice." Since the amendment of Section 10 of Article IX of the constitution in November, 1924, Section 11 of the same Article, so far as applicable here, is to the effect that any per- son qualified to vote at general elec- tions and for state officers shall be eligible to any of the offices men- tioned above except that of county superintendent of schools. Section 2 of Article IX of the constitution, as amended in November, 1932, pre- scribes the qualifications necessary to entitle a person to vote at general elections and for state officers, as fol- lows: He must be of the age of twenty-one years or over; a citizen of the United States; .a resident of the state for one year immediately preceding the election at which he offers to vote, and of the town, coun- ty or precinct for such time as the law might lay down. The constitution having prescribed the qualifications required of a county surveyor, the legislature was without power to supplement the constitu- tional pronouncement by such legisla- tion as Section 4835, supra. (State ex reI. Chenoweth v. Acton, 31 Mont. 37; Rose v. Sullivan, 56 Mont. 480; State ex reI. Shea v. Cocking, 66 Mont. 169.) NOTE: Opinion Vol. 14, Opinions of Attorney General, p. 11, did not con- sider the constitutional provisions, supra.