Oregon Advisory Opinions June 02, 1943: OAG 43-110 (June 2, 1943)

Oregon Attorney General Opinions

1943.

OAG 43-110.

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Dear Mr. Bartle: You have requested my opinion as to whether a person may hold the position of city attorney while holding the position of deputy district attorney, the specific positions involved being that of city attorney of Springfield and deputy district attorney of Lane county.

Your request necessitates a consideration of the effect of Article II, section 10, of the Oregon constitution, which provides in part:

"* * * nor shall any person hold more than one lucrative office at the same time, except as in this constitution expressly permitted; * * *."

Whether the position of city attorney of Springfield has as its basis the charter of that city or the general act of 1893 would seem to be immaterial. Both the charter (chapter 2, section 11) and the 1893 act (section 95-202, O. C. L. A.) refer to the position of city attorney as an "office" and refer to the holders thereof as "officers." Though both are silent as to the amount of compensation, they clearly contemplate that the position is lucrative. Since the legislature, in granting the charter and in enacting the 1893 act, has designated the position as an "office," such designation should be given effect (Gibson v. Kay, 68 Or. 589, 597 (1914)), and the position of city attorney must be held to be a lucrative office.

The position of deputy district attorney of Lane county exists pursuant to statutory authority---sections 93-918 and 93-919, O. C. L. A. Such statute provides for compensation to the holder of that position. The position is clearly a lucrative office. See State v. Guglielmo, 46 Or. 250, 261 (1905); Rae v. Morgan, 125 Or. 644, 655 (1928).

If Article II, section 10, is applicable, these two lucrative offices may not be held by one person at the same time. Whether Article II, section 10, applies to municipal offices, or a situation in which one office is a municipal office and the other a state office are questions which to my knowledge have not been passed upon by the supreme court of this state.

This question has been directly raised in a number of cases in other jurisdictions. The courts are not in accord and there has been developed what is referred to as a majority and a minority rule. The majority rule is that similar constitutional provisions are inapplicable to municipal offices, and that both offices must be state offices before constitutional prohibition operates. See State ex rel. Platt v. Kirk, 44 Ind. 401, 15 Am. Rep. 239 (1873); State v. Taylor, 44 La. Ann. 783, 11 So. 132 (1892); State v. Phenix, 134 La. 329, 64 So. 129 (1914) (this case involving the office of city attorney and district attorney); Peterson v. Culpepper, 72 Ark. 230, 2 Ann. Cas. 378 (1904).

Some courts which are said to follow the majority rule have construed the phrase "in this state" which appeared in the constitutional provisions of their states as limiting the operation of the prohibition to offices in the state government, and based upon such construction have held that the prohibition does not apply to municipal offices. See Boswell v. Powell, 163 Tenn. 445, 43 S. W. (2d) 495 (1931); Long v. Rose, 132 Ga. 288, 64 S. E. 84 (1909).

It is to be noted that the phrase "in this state" does not appear in the Oregon constitutional provision.

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The minority rule which prohibits dual-office holding, although one of the offices be a municipal office, is exemplified by Darling v. Brunson, 94 S. C. 207, 77 S. E. 860 (1913), and Grimes v. Holmes, 207 N. C. 293, 176 S. E. 746 (1934). The minority rule has been adopted by Missouri as to cities having over 2,000 population by an express constitutional provision. See Nickelson v. City of Hardin, 282 Mo. 198, 221 S. W. 358 (1920).

Some of the courts following the majority rule have held the constitutional prohibition applicable to diverse municipal offices which they have found to involve the exercise of certain duties imposed by the state. See Howard v. Shoemaker, 35 Ind. 111 (1875); Chambers v. State, 127 Ind. 365, 26 N. E. 893, 11 L. R. A. 613 (1891).

Many courts, including those following the majority rule, have denied the right of dual-office holding, including municipal offices, without mentioning the question of whether the constitutional prohibition is applicable to municipal offices. See Annotation L. R. A. 1917A, at page 234.

In Darling v. Brunson, 94 S. C. 207, 77 S. E. 860 (1913), the supreme court of South Carolina construed the constitutional provision of that state, which provided in part:

"But no person shall hold two offices of honor or profit at the same time: * * *."

I quote the court, at pages 861 and 862:

"We think it quite clear, however, that the petitioner, being forbidden by the constitution from holding two offices of honor or profit at the same time, has no right to the custody of the books and papers of both. We are aware that a number of authorities may be cited holding that constitutional provisions against holding two offices at the same time applies to state offices, and not to offices of a municipality. On examination of these cases it will be found that in most of them the constitutional provisions construed use the words 'state officer,' or by some similar expression give countenance to the distinction. Examination of the cases show further that the distinction has involved the courts in considerable refinement between officers performing municipal functions exclusively and those municipal officers upon whom the law imposed some duty to the state. We do not think our constitution allows the court to make the distinction. Its terms are very broad. * * *

"* * * We therefore conclude it would be restricting the meaning of the words used in the constitution, by construction beyond the judicial function, for the court to say that the prohibition as to holding two offices is limited to state offices and does not relate to municipal offices. With just as much propriety might it be held that the requirement that all elections shall be by ballot does not apply to municipal elections."

The ruling adopted by the South Carolina court, though it be referred to as a minority rule, appears to be the better view. It is the view which, though not discussed, has been followed in previous opinions of this office.

See Opinions of the Attorney General, 1928-1930, page 339, involving the offices of city recorder and justice of the peace; 1938-1940, page 196, likewise involving the offices of city recorder and justice of the peace; 1938-1940, page 670, city marshal and constable; 1938-1940, page 438, director of a people's utility district and county commissioner.

I have not found any ruling to the contrary, although there is some language to the contrary in my opinion to be found in Opinions of the Attorney General, 1934-1936, page 525.

Consideration might be given to the fundamental common-law prohibition of dual-office holding which is based upon incompatibility of the duties of the two offices. See 42 American Jurisprudence, page 926.

The judicial decisions of this state illustrate that cities and counties have divergent interests in many matters and particularly in tax matters. By reason of the divergent interests of their "clients," the duties of district attorney and city attorney are very often incompatible. Illustrations of the divergent interests of cities and counties are found in:

City of Salem v. Marion Co., 36 Or. Advance Sheets, page 741 (1943).

Eugene v. Lane County, 50 Or. 468 (1908).

Portland v. Welch, 126 Or. 293 (1928).

It is my opinion, therefore, that both the position of city attorney and that of deputy district attorney are lucrative offices within the meaning of Article II, section 10, of the Oregon constitution, and by force of that constitutional provision may not be held by one person simultaneously.