Oregon Advisory Opinions April 03, 1956: OAG 56-17 (April 3, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-17.

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In your letter of March 20, 1956, you make reference to Article II, § 11, of the Oregon Constitution, which provides:

"No person who may hereafter be a collector, or holder of public moneys, shall be eligible to any office of trust or profit, until he shall have accounted for, and paid over according to law, all sums for which he may be liable."

You then state as follows:

"In this county we have on file a candidates nomination papers for a county office, said candidate has a lien upon his property by the federal government for back taxes.

"Is this person barred from being a candidate for such office by reason of this constitutional provision? * * *"

An examination of ORS chapter 204, which contains provisions relating to qualifications of county officers, contains no provision restricting or prohibiting persons from becoming candidates by reason of having failed to pay a tax or satisfy a tax lien; neither does Article VI of the state Constitution, which contains certain qualifications relating to county officers.

No case is found wherein the Supreme Court of Oregon has construed Article II, § 11, of our state Constitution. Since our constitutional provision is identical with that of Article II, § 10, of the Constitution of Indiana, the Indiana court's decisions would be persuasive.

42 Am. Jur. 923, Public Officers, § 55, states the following as to qualification of candidates for public office:

"In the absence of some constitutional or statutory provision to the contrary, there is no restriction upon the power of the people to elect, or the appointing power to appoint, any citizen to office notwithstanding his previous character or official misconduct. * * *"

In the case of Schuck v. State ex rel. Cope, 136 Ind. 63, the relator received the second highest number of votes at a general election for the office of county auditor; the respondent received the highest number of votes. After the election, relator filed affidavits to the effect the respondent had failed to account for and pay over all funds for which he was liable when the respondent's earlier term of office as county treasurer expired, to which office relator succeeded him. The court held, in construing Article II, § 10, of the state Constitution, that "eligible to any office" means "eligible to hold any office", and does not refer to the election; for, if a person is eligible to hold the office when the time for induction into office arrives, he may take the office, though not eligible to hold the office when elected. The respondent has paid over the amount claimed to have been in default, after the result of the election was certified, but without and before the Governor had issued a commission.

Section 4, Article IV, of the Constitution of Illinois, is substantially similar in language to § 11, Article II, of our Constitution. In the case of Cawley et al. v. The People, 95 Ill. 249, the court held in construing said section that, "This provision presupposes that the default shall be known and fixed. And the default could only be fixed by judicial or other legal authority." The alleged defaulter was the county clerk while acting in that office, and by reason of the admitted default he was thereby ineligible to hold the office of county treasurer.

There appear to be few cases construing a constitutional provision similar to our own; of those examined, all related to alleged failure on the part of a public officer to account for and pay over public funds which such officer was alleged to have received in his official capacity.

Based on the cases examined, it is my opinion that § 11, Article II, Oregon Constitution, is applicable only to those persons holding public office as a collector or holder of public moneys, who fail to

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account for and pay over according to law all sums for which they may be liable, in connection with their functions as such public officer.

It is my further opinion that matter of eligibility covered therein refers to the eligibility of a person elected to public office to hold the same, and that a candidate for public office is not precluded from running for a public office, although he may be in default in accounting for and paying over certain public moneys to the proper governmental authority as required by law with respect to the same or some other public office which he held prior to or at the time of becoming such candidate. See Schuck v. State ex rel. Cope, supra.

Answering your specific question, the candidate mentioned in your inquiry is not barred from being a candidate for a county office by reason of said constitutional provision, on account of a federal tax lien having been filed against his property for back taxes.