Oregon Advisory Opinions December 02, 1947: OAG 47-237 (December 2, 1947)
Collection: Oregon Attorney General Opinions
Docket: OAG 47-237
Date: Dec. 2, 1947
Advisory Opinion Text
OAG 47-237.
A holdover senator, or candidate for nomination as legislator, may be a candidate to the national convention of his political party.
A delegate to a national convention of a political party is not a "public officer", and therefore state legislators are not prohibited by section 1, Article III, of the constitution of Oregon, from functioning as such delegates.
Dear Sir: Several questions have recently been propounded to this office on the subject of whether or not either a holdover senator, or a candidate for nomination as legislator, may be a candidate for delegate to the national convention of his political party at the same primary election.
The queries undoubtedly have been prompted in view of the recent decision in the case of State ex rel. Hayden v. Hill, wherein our Supreme Court enunciated the rule of law, in substance, that a legislator is disqualified from holding any other office during his term, in the administrative branch of the state government.
This requires a determination as to whether or not a delegate to the national convention of one of the political parties is to be considered as holding an office in the executive or any other branch of our state government.
An office involving functions in either the legislative, executive or administrative branches of the state government is a public office. Therefore, does a duly elected delegate to the national convention of his political party hold a public office?
The rule of law adopted by a majority of the courts defining a public office is stated in R. C. L., "Public Officers", Vol. 22, p. 374, sec. 4, as follows:
"One of the most important criteria of a public office is that the incumbent is invested with some of the functions pertinent to sovereignty, for it has been frequently decided that in order to be an office the position must be one to which a portion of the sovereignty of the State, either legislative, executive or judicial, attaches for the time being. The performance of an executive, legislative or judicial act is, therefore, a recognized test of a public office."
A leading case on the question of whether or not an officer of a political party is the incumbent of a public office is the case of Attorney General v. Drohan, 169 Mass. 534. As is the case in Oregon, the statutes of the state of Massachusetts regulate the election and the functions of the political parties and the political party committees. In the case cited the court stated:
"We do not think that the effect of these statutes has been or is to make that a public office which was not one before their enactment. Without attempting an exhaustive definition of what constitutes a 'public office,' we think that it is one whose duties are in their nature public, that is, involving in their
performance the exercise of some portion of the sovereign power, whether great or small, and in whose proper performance all citizens, irrespective of party, are interested, either as members of the entire body politic, or of some duly established division of it. (Citing cases) * * * Manifestly, membership in a political committee belonging to one party or another does not come within the above description of what constitutes public office. The fact that the legislature has deemed it expedient to regulate by statute the election and conduct of political committees does not make the office a public one. The members of them continue to be, as before, the officers of the party which selects them, and their duties are confined to matters pertaining to the party to which they belong, and which alone is interested in their proper performance."
See also to the same point, Greenough v. Lucey, 28 R. I. 230; State v. McLean, 35 N. D. 203; Olson v. Scully, 296 Ill. 421.
In referring to the status of members of the county central committees of the several political parties in the state of Illinois the Supreme Court of that state in the case of Rouse v. Thompson, 228 Ill. 522, 537, said:
"They in no way represent the State or any political division thereof, and cannot be classified as belonging to either the legislative, executive or judicial departments of the State. They represent only a political party. * * * Such committees are not, therefore, officers of the State, but are the representatives of voluntary associations."
Our statute providing for the nomination and election of delegates to the national conventions of the various political parties was enacted in 1915. There is nothing in such provisions of law which would have the effect of making that a public office which was not one before its enactment. It seems quite clear that under the law of this state the duly elected delegate to a national convention of a political party is not the incumbent of a public office. Such being the case, legislators are not prohibited from functioning as delegates to a national convention of a political party by section 1 of Article III of the constitution; and since the latter position is neither public nor lucrative, section 10, Article II of the constitution has no application.
It is noted that in section 81-603, O. C. L. A., as amended by section 4, chapter 450, Oregon Laws 1945, the following clause appears:
"* * * the name of each person for whom as a candidate for nomination a valid petition has been duly filed shall be printed on the ballot in but one place, * * *."
This provision applies only to the names of candidates for nomination to an office and therefore has no relation to candidates for delegate to a national convention, as such candidates are elected, and not nominated, at the primary election.
It is also noted that in section 81-1005, O. C. L. A., the following clause appears:
"* * * no person shall be qualified to be a candidate for more than one office to be filled at the same election; * * *."
The conclusion that the word "office", as there used, means "public office" is justified. Opinions of the Attorney General, 1930-1932, pp. 602, 603. As has been heretofore pointed out, the position of delegate to a national convention of a political party is not a public office, and therefore the above quoted clause does not prohibit a person from being a candidate for the office of either state representative or state senator and also a candidate for delegate to the national convention of his political party at the same election.
The conclusions expressed herein should not be confused with nor are they applicable to the nomination and election of a presidential elector.