Montana Attorney General Opinion 16-307

Opinion No. 307. Offices and Officers-Consolidation of Offices-Sheriff-Coroner. HELD: The offices of Sheriff and County Coroner may be consolidated. Hon. Frank H. Johnson State Examiner The Capitol June 29, 1936. You have asked my opinion (1) whether the county offices of sheriff and coroner may be consolidated. and (2) whether in the event the offices of county treasurer and county super- intendent of schools are consolidated the qualifications of the latter as pro- vided by Section 950.1, R. C. M. 1935, are abrogated. You have pointed out that the cor- oner in holding an inquest might be p~rforming duties which are judicial in nature while the sheriff is an ad- ministrative officer and a130 that the coroner is the only officer who has authority to arrest the sheriff. Ar:ticle XVI, Section 5, expressly prov1des that "the Board of County ~om~issi~ners of any county may, in 1ts d1scretlOn, consolidate any two (2) or more of the within named offices and combine the powers and duties of the said offices consolidated." The offices of both sheriff and coroner are named in this section. It is there- fore my opinion that these two offices may be consolidated. Whether a coroner is a judiCial of- ficer or an administrative officer it is not necessary to decide (although I am inclined to the view that he is an administrative officer since the hold- ing of an inquest is merely conduct- ing an investigation) because Article IV, Section 1 of the Montana Consti- tution provides: "The powers of the government of this State are divided into three distinct departments: The legislative, executive, and judicial, and no person or collection of persons charged with the exercise of powers properly belonging to one of these de- partments shall exercise any powers properly belonging to either of the others, except as in this constitution expressly directed or permitted." If Article XVI, Section 5, of the ~onstitution provides an exception, it 1S therefore permitted by said Ar- ticle IV, Section 1. But even if it had not been, it would have been effective anyway. It is true that Section 4792 pro- vides: "When the sheriff is a party to an action or proceeding, the process and orders therein, which it would otherwise be the dutv of the sheriff to execute, must be executed by the coroner of the county." It is not necessary, however, to de- termine whether the coroner is the only person who may serve process upon the sheriff, or whether the per- son acting as both mayor must serve process upon himself. If any diffi- culty as such exists, it was created by the people themselves by the said constitutional amendment authoriz- ing the consolidation of offices and it can in due time be remedied by the legislature. In the meantime, the constitutional provision must prevail. In my opinion your second question should be answered in the negative. See my opinion to County Attorney Murphy, dated June 27, 1936, No. 306.