Oregon Advisory Opinions January 13, 1943: OAG 43-2 (January 13, 1943)

Oregon Attorney General Opinions

1943.

OAG 43-2.

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Gentlemen: You have requested my advice as to the validity of the following legislative matter. It appears that it has been proposed that in electing county commissioners in Douglas county, one to be elected from a district comprising a southerly portion of the county, the other from a district comprising the northerly portion of the county, leaving a portion of the county, comprising the

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city of Roseburg and some surrounding territory, outside of either of the two districts, all electors of the county to vote upon the candidates from said two districts.

The effect of such a proposal would be to deny to electors of the territory outside of the two districts the right to run for office. Democratic government is based upon the fundamental thesis of majority rule, and it includes the right of qualified electors to be candidates for public office. This fundamental is thwarted if electors in a given district are denied the right to run for office or to choose candidates from the territory in which they live.

I find no constitutional provision which expressly prohibits the type of legislation suggested. However, consideration should be given to the following:

Section 6, article VI, Constitution of Oregon:

"There shall be elected in each county by the qualified electors thereof at the time of holding general elections, a county clerk, treasurer, sheriff, coroner and surveyor, who shall severally hold their offices for the term of four years. * * *"

Section 7, article VI, Constitution of Oregon:

"Such other county, township, precinct and city officers as may be necessary shall be elected or appointed in such manner as may be prescribed by law."

The word "manner" as used in this section has been construed to mean the mode of conducting an election. (Livesley v. Litchfield, 47 Or. 248, 1905).

Section 8, article VI, Constitution of Oregon, provides in part:

"No person shall be elected or appointed to a county office who shall not be an elector of the county; * * *."

It is reasonable to construe section 8, article VI, as including its converse, namely, if an elector be an elector residing in the county, he is eligible to be elected or appointed to a county office. This construction of section 8, article VI, would preclude the type of legislation suggested.

If an elector, otherwise qualified, is denied the right to run for office because of the place of his residence within the county he may well be denied a right, in common with other electors of the county, guaranteed to him under the privileges and immunities section. (Section 20, article I, Oregon Constitution).

Section 12 of the original article VII, Constitution of Oregon, provides in part:

"But the legislative assembly may provide for the election of two commissioners to sit with the county judge whilst transacting county business in any or all of the counties, or may provide a separate board for transacting such business."

The section clearly states that the election of two commissioners may be provided for in any or all counties but it is silent as to any election within districts in the counties.

If there is any principle of Democratic government to sanction the proposal, would it not lead to absurdity when it is considered that it would thereby appear possible to so limit the two districts and to so expand the excluded territory that the electors of the county would be put to a choice of candidates from within small and remote portions of the county?

I must advise you that I can find no basis upon which to sustain the validity of a measure containing the proposal that you have outlined.