Oregon Advisory Opinions December 23, 1955: OAG 55-101 (December 23, 1955)
Collection: Oregon Attorney General Opinions
Docket: OAG 55-101
Date: Dec. 23, 1955
Advisory Opinion Text
OAG 55-101.
Governor of Oregon
You have informed me that a judgment has recently been obtained against the official bond of the Sheriff of Multnomah County, and request my opinion as to the legal course to be followed under ORS 236.020, which provides as follows:
"The Governor shall declare vacant the office of every officer required by law to execute an official bond whenever a judgment is obtained against such officer for a breach of the conditions of the bond."
An inspection of the records in the Multnomah County Clerk's office discloses that a judgment was entered in the circuit court for that county on the 31st day of October, 1955, against the Sheriff of Multnomah County and his surety in the sum of $10,000, and against the sheriff in the further sum of $2,780 on account of an alleged breach of a condition of his official bond, viz., the neglect of personnel of the sheriff's office to make prompt service of summons in a civil damage case. The case record further shows that both the sheriff and his surety have filed notices of appeal in circuit court to appeal such judgment to the Oregon Supreme Court. Each has filed the usual undertaking on appeal and supersedeas bond to pay "all damages, costs and disbursements which may be awarded against Defendant [sheriff] on the appeal."
The language of ORS 236.020, which I have already quoted, is clear and unambiguous, and under such circumstances does not require report to rules of construction. Berry Transport v. Helt
zel, 202 Or. 161, 166. The statute imposes a mandatory duty upon the Governor to declare vacant "the office of every officer required by law to execute an official bond whenever a judgment is obtained against such officer for a breach of the conditions of the bond."
Under this law once you have determined that such a judgment exists, you have the duty to make an official declaration that a vacancy exists in the office of the public official falling within the purview of the statute.
Of what effect on the operation of this statute is the pendency of the appeal and the filing of the undertaking on appeal and supersedeas bond? While this precise question has never been before our supreme court, the courts of other states, in construing statutes similar to ORS 236.020, have held that the only effect of an appeal and undertaking supersedeas is to stay execution of the judgment against the officer and surety against whom the judgment was rendered, and that the removal from office is not part of this judgment, though a consequence which flows from it. State ex rel. Austin v. Superior Court, 6 Wash. (2d) 61, 106 P. (2d) 1077, 1079; State ex rel. De Concini v. Sullivan, 66 Ariz. 348, 188 P. (2d) 592; State ex rel. Martin v. Poindexter, 43 Wash. 147, 86 P. 176; Hinson v. Robins, (Okla.) 14 P. (2d) 940: 67 C.J.S., Officers, p. 208.
Although the foregoing authorities point to ouster in this case, I do feel that it is incumbent upon me to point out that I seriously doubt the constitutionality of ORS 236.020.
Research discloses that ORS 236.020 was originally enacted by the territorial legislature on January 11, 1854, as § 3, Title 2, chapter 2, Oregon Laws 1853-1854 (Oregon Code, 1853, at p. 62), of "AN ACT RELATING TO ELECTIONS, AND THE MODE OF SUPPLYING VACANCIES IN OFFICE."
At the time of the adoption of the Oregon Constitution in 1859 the above provision was not incorporated into the Constitution. Instead the people adopted Original Article VII, § 19, which provides as follows:
"Public Officers shall not be impeached, but incompetency, corruption, malfeasance, or delinquency in office may be tried in the same manner as criminal offences (sic), and judgment may be given of dismissal from Office, and such further punishment as may have been prescribed by law."
In 1870 the Oregon legislature reenacted the old territorial law of January 11, 1854. The provision which is now ORS 236.020 was paragraph 42 of the 1870 Act. The 1870 Act consisted of eight chapters divided into 48 paragraphs. This Act pertained to all the public offices of this state and covered such matters as qualifications of voters, manner of conducting general elections and procedures to be followed in election contests. Other parts regulated such matters as vacancies in office and the appointment of persons to fill vacancies in office. 1870 General Laws of Oregon, p. 94.
In 1910 the people amended Article VII in its entirety. See 1910 General Laws of Oregon, p. 7. Article VII was repealed and supplanted by the 1910 amendments. Original Article VII, § 19, was readopted in toto as Amended Article VII, § 6.
It thus appears from the history of ORS 236.020 that at the time it was first enacted as a territorial law there was no constitutional provision in existence regulating the removal of public officers. Adoption by the people of Original Article VII, § 19, of the Oregon Constitution, in 1859, had the legal effect of repealing § 3 of the 1854 territorial law cited above, as inconsistent with the constitutional provisions on the subject. See Article XVIII, § 7, Oregon Constitution. Thereafter, in 1870, 11 years after the constitutional procedure had been prescribed, the legislature reenacted the old territorial law, which included as part of its provisions the present ORS 236.020.
In drafting Original Article VII, § 19, the framers of the Oregon Constitution expressly withdrew from the Legislative Assembly the power of impeachment and provided a procedure for removal of officers to replace impeachment proceedings. It is obvious that they intended to limit and restrict legislative control over the removal of public officers.
It would be attributing to the framers and the people who adopted our Constitution an idle act to hold that by the same article they also intended to confer upon the Legislative Assembly the power to enlarge the grounds and alter the methods for removing constitutional officers. In amending Article VII in 1910 the people reaffirmed their wishes to the contrary.
The office of county sheriff is a constitutional office. See Article VI, § 6, Oregon Constitution. If a sheriff is to be removed from office the same must be done consistently with Amended Article VII, § 6. This provision is self-executing. See Opinions of the Attorney General, 1924-1926, p. 352. The Constitution having thus prescribed the causes and method for removal, in my opinion the same are exclusive. It was beyond the power of the legislature to provide for removal for any other causes or in any other manner. Conroy v. Hallowell, (Nebr.) 144 N.W. 895; People v. Craig, (Cal.) 61 P. (2d) 934; State v. Patterson, (Ind.) 105 N.E. 228.
A recent application of this principle
by the Oregon Supreme Court is found in the case of State ex rel. Powers v. Welch, 198 Or. 670, decided June 24, 1953. There our court held that the office of county surveyor is a constitutional office for which the qualifications are specified by the Constitution and consequently the legislature could not impose the additional qualification that the surveyor be a registered professional land surveyor. See also State v. Marsh, (Nebr.) 5 N.W. (2d) 206.
While our supreme court has ruled that Amended Article VII, § 6, does not require the institution in the courts of a separate proceeding for the dismissal from office of an official who has already been convicted of an infamous crime (Fehl v. Jackson County, 177 Or. 200), such is not the case here.
By the weight of authority in other states under constitutional provisions similar in substance and effect to Amended Article VII, § 6, of the Oregon Constitution, a public officer cannot be dismissed from office on account of any alleged irregular conduct until a proceeding for his removal as required by the Constitution has been filed and prosecuted successfully or he has been duly recalled by the voters. See 43 Am. Jur., Public Officers, § 182, note 16 (p. 31); Cooley, Constitutional Limitations, 8th ed., vol. 1, p. 139.
As was well stated by the Supreme Court of Pennsylvania in declaring unconstitutional an Act of the Pennsylvania Legislative Assembly similar in purpose to ORS 236.020:
"* * * What we are to decide is whether a constitutional officer, whose office the Legislature did not create, and which it cannot abolish, may be removed in any other way than that pointed out in the Constitution for the removal of officers elected by the people. Clearly there is but one answer to this. A constitutional direction as to how a thing is to be done is exclusive and prohibitory of any other mode which the Legislature may deem better or more convenient. As the people have spoken directly in adopting their ORGAnic law, their representatives in General Assembly met are at all times bound in undertaking to act for them, and what is forbidden, either expressly or by necessary implication, in the Constitution, cannot become a law." In re Bowman, In re Snowden et al., 74 A. 203, 204.
It is not the legal function of the Attorney General's office to pass upon the constitutionality of a law enacted by the legislature (Opinions of the Attorney General, 1936-1938, pp. 8, 390) unless such law is plainly and unquestionably on its face in conflict with some specific provision of the Constitution, as was the case with chapter 422, Oregon Laws 1937, which was considered by this office in an opinion rendered February 6, 1939. See Opinions of the Attorney General, 1938-1940, p. 201.
In view of the strong authority upholding the exclusiveness of the constitutional methods of removing public officials from office, it is my opinion that ORS 236.020 is plainly unconstitutional on its face; and that if it were properly brought before the courts of Oregon it would be held to violate Amended Article VII, § 6, Oregon Constitution.
The legal power to determine this question effectually and authoritatively is, of course, vested exclusively in the courts. See Opinions of the Attorney General, 1950-1952, p. 373; 1952-1954, p. 121.