Oregon Advisory Opinions April 07, 1964: OAG 64-40 (April 7, 1964)

Oregon Attorney General Opinions

1964.

OAG 64-40.

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455

You request an opinion as to whether the person to be elected at the 1964 general election to the board of commissioners of the Port of Coos Bay to fill the position which is presently held by an appointee of the board will have a two- or a four-year term.

A commissioner was elected at the general election in 1962 to the position in question for a four-year term of office expiring January 1967. After he vacated the office by resignation, a successor was appointed by the remaining members of the board as provided in ORS 777.165. As further provided in that statute, the office is to be filled by the electorate at the next general election, i.e., the 1964 general election.

The problem as to the length of the term arises because ORS 777.135 appears to require that commissioners be elected to a four-year term. Yet, that same statute appears to require that the five-member board be filled by electing two commissioners at the first general election, then three commissioners at the next general election and alternately thereafter at succeeding general elections. If the position in question is filled for a four-year term, only one commissioner will be elected in 1966 and four will be elected in 1968, since three other positions are regularly scheduled to be filled at the 1964 general election.

ORS 777.135, after providing for the initial appointment of five commissioners by the Governor in a newly created port district, states:

"(3) * * * The term of office of each commissioner shall be determined by lot at the first meeting of the board. Two of the commissioners shall hold office until January 1 next following the succeeding general election held in the state, and the remaining three commissioners hold office until January 1 following the second next general election in the state.

"(4) At the first general election two commissioners shall be elected, each to hold office for the term of four years from January 1 following that election. At the second general election three commissioners shall be elected, each to hold office for a term of four years from January 1 following that election. At each succeeding general election held in this state thereafter, commissioners shall be elected for a term of four years each, to take the place of those whose terms of office expire on January 1 following that election."

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456

The issue is whether, in view of ORS 777.135, the person to be elected to the position in question at the general election in 1964 begins a new term of four years, or whether he serves until the expiration of the old term.

The general rule is stated in an annotation entitled, "Term of office of one appointed or elected to fill vacancy," 50 L.R.A. (N.S.) 336, 345, as follows:

"The term of office of one elected or appointed to fill a vacancy in a board of several officers will be held to be for the unexpired term only, where the clear intent of the creating power was that the entire board should not go out of office at once, but that different groups would retire at regularly recurring intervals."

In State v. Ware, (1886) 13 Or. 380, 10 P. 885, the court reached the same conclusion. Original Article VII, § 3, Oregon Constitution, stated:

"The Judges first chosen under this Constitution shall allot among themselves, their terms of office, so that the term of one of them shall expire in Two years, one in Four years, and Two in Six years, and thereafter, one or more shall be chosen every Two years to serve for the term of Six years."

"* * * The object of an allotment undoubtedly is to provide that officers sitting in the same body shall go out of office at different periods. Hence it is claimed, to maintain and perpetuate the system established by allotments, when a vacancy occurs, or an officer of such body fails for any reason to hold for his full term, necessarily and logically his successor must hold for the unexpired term of his predecessor. I grant this. * * *"

If the plan for staggering the elections of port commissioners is to remain intact, a vacancy, which can be filled by election before the full term of an office has expired, can only be filled for the unexpired portion of the old term and cannot be filled for a new full term. See Opinions of the Attorney General, 1960-1962, p. 235.

Accordingly, it is our opinion that the person to be elected to the board of commissioners of the Port of Coos Bay at the general election in 1964 to fill the position currently held by an appointee of the board, but originally occupied by a commissioner who was elected to a four-year term expiring in January 1967, will be entitled to hold the office for the remaining part of the unexpired term, that is, for two years.