Oregon Advisory Opinions July 02, 1953: OAG 53-72 (July 2, 1953)

OAG 53-72.

Recently you submitted for our consideration a copy of an opinion rendered by the attorney for Douglas county school district No. 4, Roseburg, Oregon, which related to the subject of the ballot provisions in a recall election. In the opinion the attorney for the school district contends that a prior opinion of this office, dated June 1, 1927, and reported in Opinions of the Attorney General, 1926-1928, p. 218, wherein a form of ballot for the recall of school directors was set forth, does not correctly set forth the ballot, by reason of the fact that its provisions conflict with § 18, Article II, of the Constitution of the state of Oregon, as amended by the voters of the state in 1926. You state in your letter:

"This problem of a recall election ballot is one which arises more often than we like to have it. Therefore, it is quite important that we have a ruling on the subject, especially since the sections of the law are still included in the code, and the opinion is published in the Opinions of the Attorney General for 1926-28. We therefore respectfully request your opinion on the matter."

The problem you present for our consideration relates to the form of ballot to be used for a recall of school directors, and whether or not the directors subject to the recall shall appear as candidates for election to succeed themselves on the ballot.

An extended discussion of the constitutional and statutory provisions relating to recall of school directors is contained in our opinion No. 2143, dated June 10, 1952, and addressed to the district attorney for Grant county. In that opinion the question was whether a "recall petition", circulated to recall a director of a second class school district, was governed by § 111-1229, et seq., O.C.L.A., or by Article II, § 18, of the Oregon Constitution, and chapter 22, Title 81, O.C.L.A. In holding that the petition for recall of a school director of the second class would be sufficient if it substantially complied with the provisions of § 111-1229, O.C.L.A., we pointed out that Article II, § 18, of the Constitution, was not self-executing as to school districts, citing Opinions of the Attorney General, 1926-1928, p. 168, and 1934-1936, p. 279. However, the problem of whether or not there was an actual conflict between the provisions of the law prescribing the method for recalling school directors, and the constitutional provision relating to public officers generally, was not fully consid

ered. We noted that in Opinions of the Attorney General, 1926-1928, p. 437, it was stated that:

"* * * There seems to be no conflict between the ORGAnic law and the legislative enactment in this regard. * * *."

Having fully reconsidered the problem, we are now of the opinion that the prior opinions of this office dealing with this problem did not fully consider the effect of the amendments contained in Article II, § 18, of the Constitution, effected by the people at the election held November 5, 1926.

Article II, § 18, of the Constitution, was originally adopted June 1, 1908, and provided in part as follows:

"Every public officer in Oregon is subject, as herein provided, to recall by the legal voters of the state or of the electoral district from which he is elected. * * *" (Emphasis supplied)

"* * * Other candidates for the office may be nominated to be voted for at said special election. The candidate who shall receive the highest number of votes shall be deemed elected for the remainder of the term, whether it be the person against whom the recall petition was filed, or another. * * *" (Emphasis supplied)

In State v. Harris, (1914) 74 Or. 573, which concerned the recall of a county judge, the court held that the terms of the constitutional provisions above mentioned were self-executing, and that no ancillary legislation was necessary. The court further said, at p. 579:

"This provision subjects every state, district, county, and municipal officer to what has been designated as the 'Imperial Recall.' * * *" (Emphasis supplied)

Then in 1917 the legislature enacted chapter 49, Oregon Laws 1917, entitled "AN ACT Declaring school directors subject to recall and providing the method of such recall." This act is presently codified as §§ 111-1229 through 111-1236, O.C.L.A. By chapter 527, Oregon Laws 1951, its provisions were extended to "every school district", regardless of class.. Section 111-1234, O.C.L.A., provides:

"At such election the director in office and who is the subject of the recall petition, shall be considered a candidate for re-election, unless he shall resign. Any director elected to succeed a director recalled shall hold for the unexpired term of the recalled director, unless sooner recalled." (Emphasis supplied)

Section 111-1230, O.C.L.A., a part of the original 1917 enactment, provides in part that the recall petition "may or may not nominate a candidate to be voted upon at such election for the office of each director proposed to be recalled, and in case of such candidate or candidates being named in such petition it shall be specified therein the name of the director whom it is proposed that such candidate shall succeed in office."

It will be noticed that the 1917 enactment set forth a procedure for the recall of school directors which was distinctly analogous to that prescribed by the original constitutional provision then in force. However, at the regular general election held on November 2, 1926, the people of the state of Oregon adopted an amendment to Article II, § 18, of the Constitution, which amendment became effective November 26, 1926. By the amendment to the Constitution the above-quoted language was deleted from the original amendment, and there was added to the amendment the following significant provision:

"* * * If an officer is recalled from any public office the vacancy shall be filled immediately in the manner provided by law for filling a vacancy in that office arising from any other cause. * * *"

The purpose of the 1926 amendment is clearly shown by an examination of the official Voters' Pamphlet for the general election held November 2, 1926. The ballot title prepared by the attorney general presented the following statement:

"* * * THE RECALL AMENDMENT---Purpose: To amend section 18 of article II of the constitution of Oregon, providing for the recall of public officers, so as to provide that if an officer is recalled, the vacancy shall be filled immediately in the manner provided by law for filling any vacancy in that office, instead of the present provision requiring two votes at the same recall election, one upon the question of his recall, and the other upon the election of his successor, * * *."

Question then arises as to the effect of the 1926 amendment of Article II, § 18, upon prior existing legislation. The answer is found in the following language contained in 11 Am. Jur., "Constitutional Law", § 36, p. 643:

"* * * Statutes may be nullified, in so far as future operation is concerned, by the Constitution as well as by statute, since the Constitution is the direct, positive, and limiting voice of the people, and may establish a policy, fix a limit to legislation on a

given subject, or prohibit specified acts as being performed by public servants. An amendment of the Constitution must be held to amend the existing statute law to agree with such an amendment, * * *." (Emphasis supplied)

Even though a constitutional amendment is not self-executing as to all its provisions, it is self-executing to the extent that it nullifies all existing statutes, or parts thereof, which are inconsistent with its provisions: Ladd & Tilton Bank v. Frawley, 98 Or. 241, 252; Hawley v. Anderson, 99 Or. 191, 201.

Based upon the Oregon Constitution, and particularly the provisions of Article II, § 18, it is clear that but one question is to be presented at a recall election, and that is the question of whether or not the public officer shall be recalled. It is equally clear that § 111-1234, O.C.L.A., is in direct conflict with the constitutional provision, as is § 111-1230, in so far as it permits the nomination of a candidate in a recall petition. To the extent above stated, it is my opinion that the said sections are nullities, as being in direct conflict with Article II, § 18, of the Oregon Constitution. Accordingly, our prior opinion, dated June 1, 1927, reported in Opinions of the Attorney General, 1926-1928, p. 218, is hereby overruled. The form of ballot suggested by the attorney for school district No. 4, Douglas county, is approved by this office.

In conclusion, we wish to emphasize that we are not holding that the legislature did not possess authority to enact enabling legislation supplementing the constitutional provision with reference to the recall of school directors. Prior opinions correctly held that, as to school directors, the provisions of Article II, § 18, were not entirely self-executing. Nevertheless, the legislature does not possess authority to enact legislation which in any manner impairs or restricts or abrogates the procedure fixed by the Constitution. That is to say, such procedure as the Constitution prescribes is to take precedence, as far as applicable, over any statutory provision on the subject, if the statute is in conflict with the constitutional provision.