Oregon Advisory Opinions April 23, 1952: OAG 52-47 (April 23, 1952)
Collection: Oregon Attorney General Opinions
Docket: OAG 52-47
Date: April 23, 1952
Advisory Opinion Text
OAG 52-47.
A public officer has no contractual or property right in an office.
When a judicial office is legally abolished subsequent to election of a candidate therefor, but before qualification and commencement of term, the successful candidate can take no office.
District Attorney, Coos County
Dear Sir: In your letter of April 18, 1952, you state that the Coos county court proposes to consolidate its four justice of peace districts into two districts by consolidating districts 1 and 2 into one district and districts 3 and 6 into another district. The incumbents' terms in districts 1 and 6 expire at the end of this year.
You presented three questions for our consideration, the first of which is:
"1. Is the inclosed form of Order legally sufficient for this purpose?"
The order of the Coos county court provides in substance that justice of the peace and constable districts Nos. 1 and 6 are abolished and that their territory shall be added to and made a part of
other designated districts, effective midnight March 3, 1953.
By virtue of chapter 564, Oregon Laws 1947, the county court of every county is empowered to set off and establish, or modify, the boundaries of justice of the peace districts within the county. We have held in prior opinions of this office that while the county court may not modify the boundaries of justice of the peace districts so as to disturb the terms of the present incumbent judges, nevertheless, an order may be entered consolidating such districts to become effective upon the expiration of the terms of the justices of the respective districts: Opinions of the Attorney General, 1946-1948, page 413 (a copy of the proposed order referred to in said opinion is enclosed herewith). See also, Opinions of the Attorney General, 1946-1948, pages 235, 300; 1948-1950, page 143.
Furthermore, in our opinion No. 1623, dated December 22, 1950 (a copy of which is enclosed), we discussed the status of a judicial officer whose office is legally abolished subsequent to his election but prior to the commencement of his term, and held that such a successful candidate took no office, for the reason that a public officer has no contractual right or property interest in an office, and a certificate of election is not title, but mere muniment or evidence of title to office. See State v. Beckman, 185 S.W. (2d) 810; Annotation, 172 A.L.R. 1366.
It is therefore our opinion that, notwithstanding the fact that a candidate may receive a favorable vote for the office of justice of the peace for districts Nos. 1 or 6 at the primary or general election, if the office itself is legally abolished before the commission and qualification of such officer, he would not thereby be entitled to assume and perform the duties of justice of the peace for that district.
In response to your first inquiry we take it your order is based upon the fact that under § 5, chapter 564, supra, the term of office of the justice of peace is to commence "on the first Monday in January next following the election of such justice". While the said order of the county court may be sufficient, nevertheless, we suggest that you have the county court modify the same so that it will conform to the form of proposed order enclosed herewith.
Your second question is:
"2. May the County Clerk omit from the ballot, for both primary and general elections, the offices of justice of peace in the two districts to be abolished?"
The county clerk acts in a ministerial capacity in the preparation of election notices and ballots, and he must find sanction for his acts in the statute: Opinions of the Attorney General, 1948-1950, page 412. Under § 81-311, O.C.L.A., as amended by chapter 197, Oregon Laws 1949, relating to the primary election, it is the duty of the secretary of state and of the appropriate officers of incorporated cities and towns "not less than 60 days before any general primary nominating election," to prepare and furnish to each county clerk a statement showing the several state, district, or city and town offices for which candidates are to be chosen in his county. Not less than 30 days before any general primary nominating election the county clerk is required to prepare printed notices of such election and mail two of said notices to each judge and clerk of election in each precinct. See also, § 81-601, O.C.L.A., as amended by chapter 50, Oregon Laws 1945. It is apparent that the county clerk of Coos county is in no position at this time to eliminate any designated office from the notices or ballot, and we know of no statute authorizing him to do so.
With regard to the general election we direct attention to § 81-1402, O.C.L.A., as amended by chapter 50, Oregon Laws 1945, which provides for the submission of a statement by the secretary of state of the several state and district offices to be filled, and further provides that it is the duty of the county clerk 30 days before any general election to prepare printed notices of the election. See Opinions of the Attorney General, 1930-1932, page 791. Where an office has been legally abolished prior to the preparation of the printed notices of election, it is our opinion that it is the duty of the county clerk to omit the same from the said election notices and the official ballots.
Your final question is:
"3. I have determined that it is now too late to take the office off of the primary ballot. Would it be proper for the County Clerk to issue instructions to the election boards not to tally the votes cast for the districts to be abolished?"
We know of no statute empowering the county clerk so to act, and accordingly we answer your final question in the negative.