Oregon Advisory Opinions September 10, 1942: OAG 42-190 (September 10, 1942)

Oregon Attorney General Opinions

1942.

OAG 42-190.

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Public office does not become vacant by reason of the incumbent leaving the United States in the active military service.

Public officer in active military service at the time his term of office expires may stand for reelection although he is in foreign service at such time.

Dear Sir: On August 7, 1942, you addressed a letter to this office requesting an opinion on the legal interpretation of chapter 296, Oregon Laws, 1941. Such provision of law is on the subject of public officers and employees who enter active service of the army, navy or marine corps of the United States. You ask four specific questions, and I shall answer them in the order in which they appear.

"(1) Is Chapter 296 unconstitutional as being in any way in conflict with section 10 of Article II, prohibiting the holding of two lucrative offices?"

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Section 1, chapter 296, Oregon Laws, 1941, provides, among other things, as follows:

"* * * While so absent on leave, no such officer or employe shall receive the pay or other emolument of such office or position, * * *."

It thus appears that upon entering active military service the office or position which the public officer or employe previously held ceases, by operation of law, to be lucrative. The only lucrative office or position that such person then holds is that which he has entered in the military service.

Your first question is, therefore, answered in the negative. See official opinion rendered to the Honorable M. B. Hayden, District Attorney of Marion County, under date of September 8, 1941, copy of which is herewith enclosed.

"(2) Could the office be declared vacant despite Chapter 296 in case an officer called into service is sent to a foreign country?"

Section 1, chapter 296, provides, among other things:

"Whenever any public officer, or any public employe, shall be called into active service with the army, navy or marine corps of the United States, although such service may require his absence from the state, or from the district, county, city, town or village for or by which he shall have been elected, appointed or employed, or within which the duties of his office or his position are required to be discharged, such office or position shall not become vacant, nor shall such officer or employe be subject to removal, in consequence thereof, * * *."

I am of the opinion that the entry of a public officer or employe into the active service of the army, navy or marine corps of the United States is the fact which brings this provision of law into operation. His previous office or position will not become vacant, nor will he be subject to removal in consequence of such fact, regardless of where his active military service may take him. Such in my opinion, is the clear intent of this law.

I find no constitutional or statutory provision of law which creates a vacancy in public office by reason of the incumbent thereof being absent from the United States under the conditions here involved.

Your second question is, therefore, answered in the negative.

"(3) In case an officer, such as a Circuit Judge or District Attorney, is still in the army at the time his office comes up for election, is he eligible to file as a candidate to succeed himself and, if elected, to remain on leave of absence under Chapter 296?

"(4) Would the answer to (3) depend in any respect on whether the officer is stationed in Oregon, outside of Oregon or in a foreign country, as long as he maintains his voting residence in his home county or district?"

Reason dictates the conclusion that a person can be deemed to be absent on leave from an office or position only when he continues to be the lawful incumbent of the same. In the case of an elective office the period of incumbency is fixed by law. Consequently at the end of such period such person can no longer be deemed to be absent on leave. Unless the office has previously become vacant by reason of the death or resignation of the person absent on leave, the law requires that a successor be elected. Your question is, has the incumbent, who is absent on leave and who was previously qualified for the office, lost such qualifications by reason of having left the county, state, district or country in the active military service.

Clearly such person would not be disqualified unless he had ceased to be a resident and inhabitant of the political subdivision that he left when he entered the military service.

Article II, section 4, of the constitution of Oregon, provides, among other things:

"For the purpose of voting, no person shall be deemed to have gained or lost a residence by reason of his presence or absence while employed in the service of the United States, or of this state; nor while engaged in the navigation of the waters of this state, or of the United States, or of the high seas; * * *."

Such officer on leave of absence, therefore, insofar as the residence qualification is concerned, has a constitutional right to vote in the political subdivision of the state where the office of which he is the incumbent is located.

I am therefore of the opinion that unless such person has taken steps independent of his employment in the military service to change his residence, he is fully qualified to become a candidate to succeed himself. Such conclusion is in accord with an opinion expressed by the Attorney-General of the State of Wisconsin issued on May 26, 1942, in answer to a similar question.

It follows, therefore, that in my opinion your question number (3) should be answered in the affirmative, and question number (4) in the negative.