Opinion No. 73-290 (1973) Ag ( 1973 )

SCHOOL BOND ISSUE — DISTRICT ATTORNEYS' DUTIES Under the provisions of 19 O.S. 215.16 [19-215.16] (1971) and ArticleXVII, Section 2, of the Oklahoma Constitution, if a school bond issue is approved by the voters of a school district, the First Assistant District Attorney, acting pursuant to 19 O.S. 215.9 [19-215.9] may perform those duties imposed on the County Attorney as required by Article X, Section29 of the Oklahoma Constitution and 70 O.S. 15-105 [70-15-105] (1971). The Attorney General is in receipt of your request for an opinion wherein you ask, in effect, the following questions: 1. Assuming a school bond issue is approved by the voters of a school district may the First Assistant District Attorney acting under color of 19 O.S. 215.9 [19-215.9] (1971), perform those duties imposed upon the County Attorney as required by Article X, Section 29 of the Oklahoma Constitution and 70 O.S. 15-105 [70-15-105] (1971) ? 2. If the answer to the above is in the negative, is any such issue since 1965 valid if signed by a District Attorney? Title 19 O.S. 215.9 [19-215.9] (1971) provides, in part: ". . . Should the District Attorney be absent, unable to attend to his duties, or disqualified to act, the First Assistant District Attorney, may perform the duties required by law to be performed by the District Attorney. . ." Article X, Section 29 of the Oklahoma Constitution states that no bond or evidence of indebtedness of any county, township, or other political subdivision of any county is valid until a certificate is endorsed thereon and signed by various county officials, one of these officials being the County Attorney. Title 70 O.S. 15-105 [70-15-105] (1971) likewise requires that school bonds must be endorsed with a certificate signed by the County Clerk and County Attorney. Your question concerns the validity of a First Assistant District Attorney signing these certificates as opposed to the County Attorney as provided in these sections. The County Attorney was replaced with the District Attorney system in 1965. Title 19 O.S. 215.16 [19-215.16] (1971) provides for this transition from County Attorney to District Attorney and states: "The District Attorney shall exercise and perform all the powers, duties and functions provided by law for the county attorney of each county, and shall appoint all of his assistants. Wherever in the Statutes of Oklahoma in existence at the effective date of this act, reference is made to the county attorney, the District Attorney, acting personally or by his duly appointed assistant, shall perform all the powers, functions and duties and be subject to removal from office and to all the obligations and liabilities and shall stand in the stead of the county attorney under such statutes." Thus, as to the statutory provision of 70 O.S. 15-105 [70-15-105] (1971), the First Assistant District Attorney would have the same statutorial duties as provided for the District Attorney. Since the District Attorney has replaced the County Attorney, it would logically follow that the First Assistant District Attorney, as provided in 19 O.S. 215.16 [19-215.16] (1971), could also perform the duties imposed on the County Attorney. As to constitutional provisions relating to County Attorneys, Article XVII, Section 2 of the Oklahoma Constitution, provides in part: " There are hereby created, subject to change by the Legislature, in and for each organized county of this State, the offices of Judge of the County Court, County Attorney, . . ." (Emphasis added) Clearly the Legislature invoked this authority in abolishing the office of County Attorney, as provided in 19 O.S. 215.19 [19-215.19] (1971), and replacing it with the office of District Attorney. The Oklahoma Supreme Court in a recent decision, State v. Atoka County, 456 P.2d 537, 539 (1969), made the following statement as to these new provisions involving the office of District Attorney: "The office of county attorney was abolished by the provisions of 19 O.S. 215.19 [19-215.19] (1971), as the legislature was authorized to do by the provisions of Article XVII, Section 2, Oklahoma Constitution. The office of district attorney was created, 19 O.S. 215.1 [19-215.1] (1968), and the duties of the district attorney and his deputies are essentially the same as those performed by former county attorneys . . ." The Court continued at page 541: "We are of the opinion that the employees of the District Attorney, authorized by Section 215.15 as amended in 1968, to be appointed by the District Attorney to serve the entire district, are performing functions which were originally cast upon county attorneys." It is, therefore, the opinion of the Attorney General that your question be answered as follows: Under the provisions of 19 O.S. 215.16 [19-215.16] and Article XVII, Section 2, of the Oklahoma Constitution, if a school bond issue is approved by the voters of a school district, the First Assistant District Attorney, acting pursuant to 19 O.S. 215.9 [19-215.9] (1971) may perform those duties imposed on the County Attorney as required by Article X, Section 29 of the Oklahoma Constitution and 70 O.S. 15-105 [70-15-105] (1971). (Mike D. Martin)