Oregon Advisory Opinions February 17, 1945: OAG 45-24 (February 17,1945)

Oregon Attorney General Opinions

1945.

OAG 45-24.

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Senate bill No. 156 authorizing the state tax commission to conduct examinations of candidates for election or appointment to the office of assessor is probably unconstitutional.

My Dear Senator: In your communication of February 14, 1945, you ask this office to advise you as to the constitutionality of senate bill No. 156.

In obedience thereto I have perused said senate bill 156, as originally printed, and I find the provisions thereof material to the question to be answered to be as follows:

"Section 1. Before any person may become a candidate at any election for the office of assessor of any county he or she first shall secure from the state tax commission a certificate of eligibility for such office, to be issued in accordance with the provisions of this act. Further, except as hereinafter provided, no person shall be appointed to fill a vacancy in the office of assessor of any county unless he or she shall have a like certificate of eligibility."

The act further authorizes the state tax commission to conduct examinations of eligible candidates for election or appointment to the office of assessor, and that these examinations shall be made solely on the basis of qualifications and fitness, "as evidenced by open examinations and impartial investigations."

The act further provides that the state tax commission is empowered to administer the act and make suitable rules and regulations not inconsistent with the provisions thereof, and that such rules and regulations shall be subject to amendment by the commission at any time, and made available to any interested person without charge.

Section 5 of said act, after providing that the state tax commission shall control all such examinations and appoint persons for that purpose, provides in part as follows:

"* * * All such examinations shall be of practical character and shall relate to those matters only which may exhibit or reflect the qualifications and fitness of each person examined to discharge properly and efficiently the duties of the office of assessor. * * *"

The office of county assessor is a creature of the legislature, and there is no question or doubt that the legislative assembly may prescribe the necessary qualifications for a candidate to fill that office.

Nowhere in the act do I find any rule, standard or guide by which the tax commission may exercise this power delegated by the legislature. For that reason, I am of the opinion that the act violates the fundamental principal of constitutional law in that it delegates powers to an administrative body without prescribing the method in which that power shall be exercised and applied, or the method by which, in this case, the tax commission, administering the law, is to be governed.

In Van Winkle v. Fred Meyer, Inc., 151 Or. 455, Mr. Justice Rand, speaking for the court, used this language (page 466):

"The further objection that this act is unconstitutional because it contains no standard or guide and prescribes no rule of law by which the powers conferred under the act are to be exercised must also be sustained. It is a fundamental principle of constitutional law that in delegating powers to an administrative body the legislature must prescribe some rule of law or fix some standard or guide by which the actions of that body, in administering the law, are to be governed and made to conform. Under this act, there is no rule of law, nor is there any standard or guide prescribed by which the persons to whom the powers are to be delegated are to be controlled or to which they must conform. * * *"

Our Supreme Court in the case of City of Portland v. Welch, 154 Or. 286, speaking through Mr. Justice Belt, after quoting with approval from Livesay v.

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DeArmond, 131 Or. 563, observed (page 303):

"* * * We assume it to be a well-settled rule, however, that when the legislature does confer upon an administrative board the power to exercise discretion in carrying out the mandate of the state, there must be some definite and reasonable rule for its guidance in the exercise of such discretion. * * *"

See, also, La Forge v. Ellis, Advance Sheets, Vol. 40, No. 1, January 11, 1945, wherein the principle enunciated in the Fred Meyer and the Welch cases was reiterated and approved.

The act attempts to authorize the state tax commission to prescribe rules and regulations, but again this is objectionable and one of the most important limitations on the general prohibition of the delegation of legislative power to administrative bodies, for nowhere in the act are any qualifications prescribed, that is, whether or not the candidate is to be a college or university graduate, a high school graduate, or whether he is to have a certain number of years' experience, or a course in classification of lands, nor is there any other standard fixed, except as used in section 5 thereof that such examinations shall be of "practical character and shall relate to those matters only which may exhibit or reflect the qualifications and fitness of each person examined to discharge properly and efficiently the duties of the office of assessor."

It would seem that the act delegates the entire matter of qualifications of the candidate to the administrative body and leaves the determination of elegibility with the examining board or its agent.

Another anomalous situation may arise thereby.

The act attempts to vest in an appointive commission power to determine the prerequisite eligibility of a candidate for an elective public office, and to vest the appointive commission with power to fill vacancies occurring in such elective office.

For the reasons aforesaid, it is my opinion that the act in its present form is objectionable in that it contravenes fundamental principles of constitutional law.

GEORGE NEUNER,

Attorney General.