Oregon Advisory Opinions April 28, 1975: OAG 75-27 (April 28, 1975)

OAG 75-27.

ORS 236.100 provides:

"Whenever a vacancy occurs in any partisan elective office in this state and is to be filled

by appointment, including the office of United States Sentator, no person shall be eligible for such appointment unless he is affiliated, as determined by the appropriate entry on his official election registration card, with the same political party as that by which the elected predecessor in such office was designated on the election ballot."

The scope of the statute clearly includes county officers. 28 Op Atty Gen 204 (1957). However, it does not include officers of Home Rule counties, in view of Oregon Constitution, Article VI, §10, which provides that the charter of such a county:

". . . shall provide directly, or by its authority, for the number, election or appointment, qualifications [etc.] . . . of such officers as the county deems necessary."

Regarding the possible applicability of the Federal Constitution, the only provision therein which could possibly cast doubt on the validity of a statute such as ORS 236.100 is the Equal Protection Clause of the Fourteenth Amendment. This would employ the theory that the clause is conceivably violated because some persons (those not members of the former official's party) are not eligible for appointment and thus unconstitutionally discriminated against.

However, Art. I, sec. 20 of the Oregon Constitution, prohibiting privileges and immunities not available to all citizens, for our present purposes serves the same function as the Equal Protection

Clause of the Federal Constitution and has been treated as the same by the Oregon Supreme Court.(fn1) See, for example, Shaw v. Zabel , 267 Or 557, 517 P2d 1187 (1974). It follows that the Federal Constitution cannot be involved in the issue because if a law is invalid under the Oregon clause there is nothing for the Federal clause to operate upon.

The possibility of an effect of Art. I, sec. 20 of the Oregon Constitution upon the validity of ORS 236.100 was mentioned in 29 Op Atty Gen 113 (1959), where the view was expressed that the Constitution's provision raised a "serious question as to the constitutionality of this law . . ."

More serious, we feel, is the possible objection that ORS 236.100 unlawfully adds a qualification for serving in a county office beyond that prescribed by the constitution.

Article VI, sec. 8 of the Oregon Constitution provides:

"Every county officer shall be an elector of the county, and the county assessor, county sheriff, county coroner and county surveyor shall possess such other qualifications as may be prescribed by law. All county and city officers shall keep their respective offices at such places therein, and perform such duties, as may be prescribed by law."

It is seen that the legislature is authorized to add qualifications for assessor, sheriff, coroner (now obsolete) and surveyor.

Before these exceptions were added, it was ruled in the case of State ex rel Powers v. Welch , 198 Or 670, 259 P2d 112 (1953) that a statute requiring that a county surveyor be either a registered professional engineer or a registered professional land surveyor was void because it added to the qualifications prescribed in Art. VI, sec. 8. The court adopted the following rule:

". . . [W]here a state constitution provides for certain officials and names the qualifications for such officers, the legislature is without authority to prescribe additional qualifications unless the constitution, either expressly or by implication, gives the legislature such power. The converse is true that the legislature may create any reasonable qualifications for a legislative officer, or a constitutional officer where no qualification is prescribed in the constitution itself." 198 Or at 672-673

Article VI, sec. 8 sweepingly refers to "Every county officer" (with the express exception of sheriff, coroner and surveyor) in providing what the Oregon Supreme Court has held to be the minimum qualification for county office.

We here observe that Article VI, sec. 8 of the Oregon Constitution as interpreted by the Powers case, raises a doubt covering the validity of ORS 236.100 as it applies to county officers other than assessor, sheriff, coroner or surveyor. This question was acknowledged in 29 Op Atty Gen 113 (1959) where it was noted that a circuit court had held the statute void as it applied to the appointment of a county clerk. As far as we have been able to determine, that ruling was not

appealed. We will not express a firm opinion as to the validity of the statute as it applies to county officers, however. Statutes are of course presumed to be constitutional and prudence dictates that except in exceedingly clear cases this office will not deem them otherwise. A question raised in the abstract may appear quite different when presented in the environment of an existing controversy which will determine the course of important future events. Only as an example, we mention Article II, sec. 8 of the Oregon Contitution which directs the legislature to enact laws regulating elections. It is possible that, when presented with a given fact situation, a court would hold that this section provides a needed exception to the rule in the Powers case, and sustains the validity of ORS 236.100 as it applies here. Consequently we only state that Article VI, sec. 8 of the Oregon Constitution raises a doubt covering the validity of ORS 236.100 as it applies to county officers other than assessor, sheriff, coroner or suveyor. Doubt of a less serious nature is raised by Article I, sec. 20, discussed earlier.

1 The Oregon provision applies only to citizens but that is not material here because, as we shall see, one must be an elector to be eligible for appointment and to be an elector one must be a citizen. Art. II, sec. 2, Oregon Constitution.