Oregon Advisory Opinions December 03, 1973: OAG 73-59 (December 3, 1973)
Collection: Oregon Attorney General Opinions
Docket: OAG 73-59
Date: Dec. 3, 1973
Advisory Opinion Text
OAG 73-59.
Do the requirements of Article II, Section 14a of the Oregon Constitution, requiring nominating and regular elections for elective city officers to be held at the same time as primary and general elections for state and county officers, apply to all Oregon cities regardless of population?
ANSWER GIVEN
Yes.
Article II, Section 14a of the Oregon Constitution provides:
"Incorporated cities and towns shall hold their nominating and regular elections for their several elective officers at the same time that the primary and general biennial elections for State and county officers are held, and the election precincts and officers shall be the same for all elections held at the same time. All provisions of the charters and ordinances of incorporated cities and towns pertaining to the holding of elections shall continue in full force and effect except so far as they relate to the time of the holding such elections. Every officer who, at the time of the adoption of this
amendment, is the duly qualified incumbent of an elective office of an incorporated city or town shall hold his office for the term for which he was elected and qualified. The Legislature, and cities and towns, shall enact such supplementary legislation as may be necessary to carry the provisions of this amendment into effect."
This provision became effective by vote of the people in 1917.
Some question has arisen as to whether cities of less than 2,000 population are exempt from this requirement because of ORS 221.200 which provides:
The statute cannot be taken to contravene the clear requirement of Article II, Section 14a, simply because there has been no supplementary legislation--as authorized in the last sentence of the section--regarding cities under 2,000 population."All laws regulating and governing general elections, proceedings and matters incidental thereto, shall apply to and govern elections in all cities with a population of 2,000 or more, according to the last official federal or state census. All certificates of nomination of candidates for city officers to be filled by the electors at an election in any such city, and all acceptances and withdrawals shall be filed with the city clerk, recorder or auditor, as the case may be, who shall keep a register of nominations for city officers in the manner required by general laws to be kept by the county clerk."
ORS 250.230 explicitly states that the Legislature has intended to carry out the provisions of Article II, Section 14a:
"It is declared to be the intention of the legislature to carry out the provisions of section 14-a, Article II, Oregon Constitution. All elections for city officers in any city with a population of 2,000 or more, according to the last official federal or state census, shall be held at the same time and place as elections for state and county officers.
Nor can the last sentence of ORS 250.230 be given the force of authorizing cities of less than 2,000 population to hold elections contrary to Article II, Section 14a. As the Statute Revisor noted in the annotation to ORS 221.200, explaining the ommission of a former reference to cities not holding elections at the same time as regular elections for state and county offices, this former provision was contrary to Article II, Section 14a, and further, was regarded as impliedly repealed by the enactment of what is now ORS 250.230, quoted above.The election boards for state and county elections shall be the election boards for the city elections. As far as practicable, the ballots used for state and county elections, as provided by law, shall be arranged to include the names of city officers and measures to be voted upon at city elections. This section shall not be construed as interfering with or limiting the right of other cities to hold elections as provided by section 14-a, Article II, Oregon Constitution."
We are also referred to ORS 221.902, a part of the 1893 Incorporation Act, which provides two year terms for the six aldermen specified, and requires the election of three of the six each year. This clearly required annual elections. We use the past tense intentionally; no mere statute can override an express constitutional requirement, and although occasionally a statute may be a guide to interpretation of a constitutional provision, there can be no doubt that the 1917 constitutional amendment nullified this provision of the 1893 statute.
Finally, it is suggested that a reference in ORS 250.030 to "special" elections may authorize regular annual election of city officials, on the grounds that the "off year"
elections would be "special" elections under the statute. If such were true, a city charter could provide for terms of city officers in such a manner as to require an election every year. This would be contrary to the clear intention of Article II, Section 14a, and contrary to the argument advocating adoption of this constitutional amendment, submitted by legislative committee, as printed in the Official Voter's Pamphlet for the Special Election of June 4, 1917, at which Article II, Section 14a, was adopted. The statement said in part:
The reference to "special" elections in ORS 250.030 must be taken to refer to a special election such as provided for in ORS 221.160 to fill a vacancy, or under a similar provision in a city charter, and in no case to authorize any regular off-year elections."The charters of some municipalities provide terms of office of one year and upward. The passing of the proposed amendment would require the minimum terms of municipal officeholders to be fixed at two years as the elections under the proposed amendment would be held only biennially."
We therefore conclude that all incorporated cities in Oregon must hold their elections for city offices at the same time that the primary and general biennial elections for state and county officers are held, as clearly stated in Article II, Section 14a of the Oregon Constitution.
Although the question has not been asked, we assume that concern may arise as to the validity of ordinances adopted and other actions taken in the past by city councils, some of whose members were previously elected in unconstitutional off-year elections. The universally accepted rule is that acts of de facto officers are valid. Although the cases do not completely agree on the degree of apparent authority
necessary to constitute an officer (such as city councilman) a "de facto" officer sufficient to validate his official acts, for purposes of this opinion it is sufficient to say that city councilmen elected in off-year elections previous to 1973 pursuant to city charters would be de facto officers, and their acts and the acts of the councils of which they were members are valid. We hold, however, that any elections in November of this year were nullities, and persons elected in such elections cannot take office; any "replaced" incumbents will hold over in office notwithstanding a charter provision purporting to end their terms.