Oregon Advisory Opinions January 20, 1944: OAG 44-9 (January 20, 1944)

OAG 44-9.

Eligibility of members of legislature who are on leave with armed forces.

Secretary of State's duties as to eligibility of members of legislature.

Dear Sir: In requesting my opinion as to your duties under section 81-311, O. C. L. A., you state:

"At the regular general election held November 3, 1942, Douglas McKay and Allan G. Carson were elected as senators for the first senatorial district, each for a four year term. Subsequently, both of these senators notified the Secretary of State and the County Court of Marion County that because of their absence in the military service they would be unable to attend the regular session of the Legislative Assembly to be held in 1943; and the County Court, acting pursuant to the provisions of Chapter 296, Oregon Laws, 1941, thereafter appointed Frederick S. Lamport of Salem as senator pro tempore to serve for Senator McKay, and John H. Carson of Salem as senator pro tempore to serve for Senator Allan G. Carson.

Senators pro tem Lamport and John H. Carson were adjudged by the 42nd Legislative Assembly to be qualified members of that body, and performed their duties as such. Owing however, to their status, and that of their principals, as determined by the Senate Committee on Credentials (Oregon Senate and House Journals, 1943, page 11), the question now presents itself whether there is a vacancy in the two offices of senator for the first senatorial district to be filled at the general election to be held this year. The case of Senator pro tem Lynch is not pertinent to this inquiry, since Senator Chester E. McCarty for whom he substituted was elected in 1942 for a two year term, only."

The question presented is whether candidates are to be nominated at the

primary election, May 19, 1944, for the offices of State Senator for the First Senatorial District, comprising the county of Marion.

Your request necessitates a consideration of the action of the senate with reference to the eligibility of the senators-elect. The report of the Senate Committee on Credentials, which was adopted by the senate (See page 11, Senate and House Journal, 1943), as pertinent, provides:

"The following senators have been elected for a term of four years beginning November 4, 1942, and are entitled to sit in this body, to wit: Allan G. Carson, Douglas McKay, * * *.

The following senators are holding lucrative positions in the armed services of the United States government, and by reason thereof their seats there-upon became vacant, to wit: Douglas McKay, Chester E. McCarty and Allan G. Carson; that thereupon their seats in this body were filled, as by law provided, by the appointment of the following: John Carson to succeed Allan Carson, J. J. Lynch to succeed Chester E. McCarty, and Frederick S. Lamport to succeed Douglas McKay, and by reason thereof John Carson, J. J. Lynch and Frederick S. Lamport are entitled to sit in this body until November, 1944. Signed: Mahoney, McKenna and Walsh."

It is readily apparent that this committee report is inconsistent in that it states in one paragraph that Allan G. Carson and Douglas McKay "are entitled to sit in this body" and in the paragraph following states that Douglas McKay and Allan G. Carson "are holding lucrative positions in the armed forces of the United States Government and by reason thereof their seats therein became vacant."

The records in your office disclose that the County Court of Marion County by an order dated November 25, 1942, based upon a finding that "Douglas McKay is absent on leave with the armed forces," and purporting to act under the provisions of chapter 296, Oregon Laws, 1941, appointed Frederick S. Lamport as "Senator pro tem" to act "until such time as the regular senator, Douglas McKay, shall return from his absence on leave and take over the duties of his office."

An almost identical order was entered by said court on the 21st day of December, 1942, appointing John H. Carson as "Senator pro tem" to act "until such time as the regular senator, Allan G. Carson, shall return from his absence on leave and take over the duties 01 his office."

No other order or attempted appointment of Frederick S. Lamport and John H. Carson appears in the records of your office nor has any other order or purported appointment come to my attention.

Chapter 296, Oregon Laws, 1941, provides in part, as follows:

"Section 1. Whenever any public officer * * shall be called into active service with the army * * his absence from the state or from the district * * or within which the duties of his office * * are required to be discharged, such office * * shall not become vacant, nor shall such officer or employee be subject to removal in consequence thereof, but, during the term for which he was elected, * * unless he sooner die or resign, such officer * * shall be deemed absent on leave until his release from such active service has permitted him to resume the duties of his office. * * . While so absent on leave, no such officer or employee shall receive the pay or other emolument of such office * * *.

Section 2. During the period any public officer is absent on leave pursuant to section 1 of this act a substitute shall serve in his place and stead; such substitute shall be appointed by the authority having power to have appointed him as successor had such office become vacant; * * *."

There can be no question but that the County Court of Marion County acted under the provisions of chapter 296 in selecting the two "senators pro tem". The view that Allan G. Carson was absent on leave within the meaning of this statute was expressed in the opinion of this office rendered to you under date of December 18, 1942.

It is fundamental that the sole power to declare statutes invalid rests in the judiciary. Neither the Senate Committee on Credentials nor the senate itself had power to declare chapter 296, Oregon Laws, 1941, as applied to members of the legislature, inapplicable. No exception of legislators from the operation of chapter 296, Oregon Laws, 1941, is made by the terms thereof, and it seems obvious that the words "any public officer" includes a member of the legislature.

If this office were to construe the action of the senate in adopting the report of the Committee on Credentials as declaring vacant the offices of senator from Marion County, First Senatorial District, it would also have to say that the senate viewed as inapplicable chapter 296, Oregon Laws, 1941.

The legislature, of course, is presumed to know the limitations of the constitution and to have enacted legislation in conformity therewith. It would, there-

fore, be preposterous for me to assume that the senate viewed chapter 296, Oregon Laws, 1941, as being inapplicable as applied to members of the legislature. Particularly is this true in light of the fact that one of the members of the House of Representatives of, the same legislative assembly---namely Fred C. Homes, was appointed and seated as a member of the House as a representative pro tern to serve in the absence of Frank J. Van Dyke who had been elected to the House of Representatives but was absent on leave. (See page 169, Senate and House Journal, 1943).

It is also interesting to note that Mr. Van Dyke's service with the armed forces terminated, whereupon the House of Representatives seated Mr. Van Dyke as a member thereof. (See page 222, Senate and House Journal, 1943).

The names of John H. Carson and Frederick S. Lamport came before the senate solely by force of the order of the county court above referred to which purported to act pursuant to chapter 296, Oregon Laws, 1941. In fact, under section 94-109, O. C. L. A., the county court at the time it acted in the matter had no authority, to make an appointment, except under said chapter. The credentials of the appointees, therefore, must rest upon the provisions of said chapter. These credentials formed the sole basis of the senate's action. Thus John H. Carson and Frederick S. Lamport were either seated under the authority of said chapter or the senate acted without any basis and could as well have seated a lobbyist or any other individual willing to serve. The latter cannot be presumed.

In the light of the apparent applicability of chapter 296, Oregon Laws, 1941, to members of the legislature serving with the armed forces, the appointment of John H. Carson and Frederick S. Lamport as senators pro tem by the County Court of Marion County, the inconsistency in the report of the Credentials Committee of the Senate and the recognition by the House of Representatives that chapter 296, Oregon Laws, 1941, applies to members of the legislative assembly, I am of the opinion that the Senate of the 42nd Legislative Assembly did not declare vacant the offices of state senator from the First Senatorial District.

In ascertaining the duties of the Secretary of State in the matter, consideration has been given to the provisions of section 10 of article II of the Oregon Constitution which provides in part that:

"No person holding a lucrative office or appointment under the United States or under this state shall be eligible to a seat in the legislative assembly. * * *"

Under the holding of the Lessard case it is clear that unless a member of the legislature dies, files a written resignation with the Secretary of State, is recalled, or is disqualified by the house to which such member was elected, the Secretary of State has no authority to pass upon the eligibility of a member duly elected.

As stated by the Supreme Court in this case:

"* * * When a vacancy occurs by death, resignation or 'other disability' as determined by the legislative branch of the government, it is then, and not until then, the duty of the secretary of state to act under the provisions of the statute."

In the Lessard case the court held that it had "no jurisdiction over the matter of determining the eligibility" of a member of the legislature.

Since the house to which the members were duly elected failed to declare a vacancy, the holding of the Lessard case precludes the Secretary of State from declaring a vacancy. I, therefore, advise you that for the reasons aforesaid there is no vacancy in the office of either of the elected state senators from the First Senatorial District, and that there is no candidate to be nominated at the primary election in 1944 for either of the said offices.