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Show Office of the Attorney General OPINION NO. May REQUESTED "Where Homer Holmgren, County Attorney Also on p. State of Utah May Assistant Attorney General right a person serving In 43 whose Jur., p. Am. Taking a leave of cbcence during the time the Legisla- ture is in session does not never the relationship as r.csistant rounty attorney. The legislators am elected for two ye;;irs end four years, fo.: the House and Sc respectively. A a me;, 'bar of the Legislature during the interii,! legislator is .between sessions, and a leave of ah'. nee, without a rr. ignation, during a session of the Legislature contemplates a restoration to the county attorneys office during the interim between sessions. We conclude, therefore, that taking a leave 'of absence does not remove the disqualification pronounced by the Constitution. real question jn whether the position of an ?: distant county attorney is a "public1 office o. profit or trust.1 There be is no question but that thrt. Hilary mid and the duties The i performed make the positic:: r.no of profit. ...sd of public jurisdictions it is held a deputy is not a public officer, the weight of authority appears to be the other way, especially where the appointment is permanent and not merely casual for a special service, and where he is required by statute to take an oath of office." Article V, of the State Constitution requires "all officers made elective or appointive by this Constitution or by the laws made in pursuance thereof, before entering upon the duties of their respective offices, shall take and subscribe the following oath or affirmation," stating Section v. Barlow. 24 Utah 2d 226, 469 P.2d 497, the definition of a "civil office, " given in The office of deputy county attorney fits within the requirements as set out in It is (1) created office, not merely military in its nature, that pertains to the exercise of the powers or authority of civil government. Requisites are continuity, creation and definition of powers and duties by the Constitution or Legislature, or their authority, possession of governmental powers and independence unless controlled by superior officers." 70 N.W. 2d 765, be prescribed by law." Section U.C.A. 1953, prescribes the powers and duties of a county attorney. He is a public prosecutor and must "(2) Institute proceedings before the proper magistrate for the arrest of persons charged with, or reasonably suspected of any public offense when he has information that such an offense has been committed, and for that purpose must attend in person or by deputy upon the magistrates in cases of arrest as duties are prescribed (3) The, (4) It is may be imposed by It by them." with the empowers every county officer, consent of the county commissioners to appoint as many deputies assistants as necessary for the prompt and faithful of the duties of his office. The appointment must discharge be in writing and filed in the office of the county clerk and such deputy shall take the bath of office. We are informed that you did take the oath of office as required by the Constitution and statute. and may be These sections clearly c:ovide for the of deputies by the county attorn- - and places upon : ;h the samo duties as thu county attorney would disc;. urge in matters pertaining to his office. The deputy, whiles co acting, is not merely an agent of the county attorney, no is the State's prosecutor performing a duty imposed by statute, in this sense, he is more than a mere "assistant." He is the alter ego of the county attorney. An "assistant" as defined in 4 Words and Phrases, Permanent Edition 553: "An 'assistant' is one who stands by. and aids or helps another, and is not an agent." In State v. Avers. 113 P.2d 785, 112 Mont. 120, the court held that the statute created an office in providing for an "assistant superintendent of the state asylum for the insane", and that tl- word "assistant" would not be construed in its ordinary sense in view of the duties, obligations and responsibilities given to the assistant. He was in fact a public officer. In 67 I C.J.S., p. 450, Sec. 148b is tho following: statute. the superior officer. carries with it governmental powers to prosecute violations of the law. It follows that tho deputy county attorns in a public officer, holding a public office of the state, aid, therefore, is prohibited by Section 6, Article VI, of the State Constitution from being a member of the Legislature. Respectfully submitted. 5. ( (J vern6n"b. Komney Attorney General HOMER Ilfl: el 76 Utah 414, O HOLMGREN Assistant Attorney General 290 P. 358 Warranty Deeds 214 Harold Dee Bearden etux to Don J. Par r etux. Maurice B. McDermott 331 etux to etux. Patrick J. Carolan Jr Richard Prows Inc. to L. Eugene Clissold etux. 332 222 Lorin F. Wheelwright etx to Lorin F. Wheelwright Investment. 337 223 Lorin F Wheelwright Inv. to Robert N. Williams 339 Isabelle M, Bosch to Isabelle M. Basch. 267 342 J.B. Builders Inc. to Ronald Dean Sorth etux. 218 etux. Boyd G. Martin etux to Zola S. Martin. Patrick J. Carolan Jr. etux to Earl E. Conroy etux. Lynn M. Chatterley to Harry E. Faville etux. 3 50 268 Boyd G. Martin etux to The Martin Company. ' di-putic- s - by independent of rules and regulations except -1, 6-7 Legislature. office of the appointing officer, unless sooner terminated by abolishment of the office, or otherwise lawfully terminated. the office of county attorney is a public office of the State created by Section 10, Article VIII, declaring that "a county attorney shall be elected by the qualified voters of each county who shall hold office for a term of four years. The powers and duties of county attorneys, and such other attorneys for the State as the Legislature may provide, shall 17-1- by the has a definite tenure. It was held in Fowler v. Gillman that where a deputy is appointed by a county officer, the appointment continues for and during the term of The Section v. Barlow, supra: Romney It (2) (5) In Dosker v. Andrus. 342 Mich. 548, court adopted the same requirements. 1CL, the oath. trust. "An required is the following: ; court adopted the Black's Dictionary, as follows: when 220, Sec. 462, "Although in some "No person holding any public office of or trust under authority of the united States, profit or of this State, shall be a member of the Legislature..." 17-18- respect acts done under color of office are of equal force with those by the officer himself." the office, but Sec. 6, Article VI, of the Utah Constitution provides: Romney when used with deputy of a public officer, is usually defined as one who by appointment exercises an office in another's or name, that is, one who has no interest in No. CONCLUSION: statute for the is the following: 449-5- 0 "The term as an assistant county attorney, not covered under the county Merit System, also serve in the Utah State Legislature, provided that he takes a leave of absence as assistant county attorney during the period the Legislature is in session? QUESTION! made by 1 Vernon B. Romney, Attorney General PREPARED BYi provision is position of deputy, such deputy is regarded as a public officer, and it has been held that, if the superior is denominated an " officer, then the deputy is also an off icer. 2, 1972 Lake County, State of Utah 72-0- 22 J. Colessides, Assistant Nick BY: Salt In MONDAY, MAY 8, 1972 THE DAILY RECORD PAGE FOUl 354 277 Leo K. McBride etux to Perry Rees etux. 278 Perry Rees etux to Shopping Center Inr 306 Jacob C. Phelps etux to Alfred Licber etux. 317 Harold R, McCallistev G. Lee Smith etux. n Reynold V. Wixom, etux to Lola S. Wixom, Tr. 358 Reynold V. Wixom etux to Reynold V. Wixom, T--. 365 etux. Shirley E. Pittman Ken-yoto Chris J. Draaycr etux. 357 314 Wilbcm L. McDougal etux to Charles Gordon Moore David B, Scott etux to K, G ry Shields etux. Realy Inv. to Gen. Inv. 367 Secretary Housing to Thomas E. Lavoie etux, 369 Annetta W. Knuteson to etux to J. JLarry Bradshaw etux. 320 Walter D. Blcazurd etux to Jcjhn J. Duffy etux. 373 Richard I,. Lamb etux to D.ile A, Johnston etux. 329 Rex L. Roark etux l.o Rudy Valentine Gregovich etu 376 Utah Realty f. Const. tr .hnncK C, Edmonds etux. i |