Oregon Advisory Opinions February 27, 1951: OAG 51-44 (February 27, 1951)

OAG 51-44.

Dear Sir: Under date of February 21, 1951, you presented two questions for our determination, the first of which is:

"Will you kindly give your opinion as to the constitutionality of an Act that would prohibit a county officer becoming a candidate during his term of office for another office, such as an official of an incorporated city."

The broad inquiry presented can only be answered by directing your attention to pertinent constitutional provisions and rules of law that may possibly conflict therewith, since we have not been supplied with any proposed bill relating thereto. At the outset you are undoubtedly aware of constitutional provisions which prohibit the "holding" of incompatible offices: Art. III, § 1, Art. II, § 10, Oregon constitution. However, your letter suggests that the proposed legislation would be directed against the "eligibility" of candidates for office, which is something entirely different from the right to function in two capacities or hold two offices at the same time.

As we view it, the proposed legislation suggested by your inquiry may be interpreted either: (1) As an additional qualification for candidates seeking public offices in this state; or (2) as a duty or condition subsequent to the tenure or holding of a county office, which the county official must accept upon his assuming the duties thereof.

If the first construction is given to this proposed law, you will be confronted with the established rule of law to the effect that "when a state Constitution names the qualifications for a constitutional office, the legislature has no authority to prescribe additional qualifications, or to remove any of the requirements provided for in the Constitution, unless that instrument, expressly or by implication, gives the legislature such power." Anno. A. L. R. 481; 47 Am. Jur., "Public Officers", § 38, pg. 909; 67 C. J. S., "Officers", pg. 125.

The constitution does not set forth the qualifications of officers of municipalities, such as cities and towns, and while the legislature may not "amend or repeal any charter or act of incorporation for any municipality, city or town" (Art. XI, § 2), it may validly enact by general law legislation which affects alike all municipalities similarly situated.

Accordingly, if the first construction is given to your proposed law we can see no constitutional objection thereto in so far as city offices are concerned, even though it is interpreted as an act prescribing additional qualifications for candidates for city offices. However, we will not attempt to enumerate the various "offices" wherein the constitution of this state prescribes the qualifications of candidates, and simply point out that the legislature can not validly prescribe qualifications beyond those specified in the constitution for such offices. See Ekwall v. Stadelman, 146 Or. 439.

That the proposed legislation may be upheld on the theory that it simply imposes a "condition subsequent" to the tenure of the office of a county official is shown by the case of Mulholland v. Ayers (Montana, 1940), 99 P. (2d) 234. In that case the plaintiff was elected state senator and during his term of

office filed as candidate for mayor of a city, but waged an unsuccessful campaign. He did not file a resignation as state senator and brought a declaratory judgment action to receive a judicial construction of his right to hold office under chapter 116, Montana Laws of 1937. Section 1 of the act provided, in substance, that when any person holding any office under the laws of the state, a term of which is longer than two years, shall become a candidate for election to any elective office, other than for reelection to the office held by him, he shall resign the office held by him, and if he fails to do so the office shall become vacant and unoccupied ipso facto. Section 3 of the act provided that its provisions should not apply to certain offices, and section 4 declared that

"This act shall be construed as a condition subsequent to the tenure or holding of any office, appointment, position or place under the state of Montana, as aforesaid; and it shall not be construed as imposing or providing any additional qualifications for office in any case where such qualifications are now prescribed by the constitution."

"Section 4 of Chapter 116 expressly states that the Act is not to be considered as adding additional qualifications for eligibility to public office. This legislative declaration is in accordance with the facts. The requirement that the holder of a public office must tender his resignation upon becoming a candidate for another office, or that his filing for another office would work a resignation ipso facto, does not prescribe additional qualifications for the office. * * * the requirement that an office held by one who becomes a candidate for another becomes vacated goes not to his eligibility to hold either office. He is still qualified in the legal sense to hold either. Chapter 116 is simply a limitation upon the right to retain the office already held when seeking another. It is not a limitation upon the right to seek another office. The incumbent of an office has the choice under the statute to retain it unmolested, or give it up and seek another." (Emphasis supplied)

The court further held that the act did not violate Art. V, § 2, of the Montana constitution which fixed the term of state senators at four years, nor was it violative of the constitutional provision providing for the impeachment of certain officers for certain causes, and concluded by saying:

"In considering the question of the constitutionality of the statute we keep in mind the oft-repeated rule that it will be presumed valid and we will not condemn it unless it is shown beyond a reasonable doubt to be in conflict with some constitutional provisions. We also keep in mind that, unlike the Constitution of the United States which is a grant of power, ours is a limitation of power, and the legislature of the state has the power to do as it pleases, save and except as limited expressly or by necessary implication by some constitutional provision."

This is the only decision we have found wherein a court considered legislation of the type suggested by your letter, and the dissenting opinion in the above case made note of the fact that "no other state of the Union has a comparable statute." The law involved in the above entitled case was repealed by chapter 27, Montana Laws, 1943.

In response to your first question, it is our opinion that an act prohibiting a county officer from becoming a candidate during his term for another public office, would not be unconstitutional where the act does not purport to add qualifications for candidates for public office beyond those prescribed by the constitution, and the legislation is based upon substantial grounds and is not arbitrary or unreasonable.

Your second question is:

"Will you also advise as to the constitutionality of an Act which would prohibit a District Attorney from becoming a candidate for the Legislative Assembly during the tenure of his office as District Attorney."