Oregon Advisory Opinions April 12, 1944: OAG 44-57 (April 12, 1944)
Collection: Oregon Attorney General Opinions
Docket: OAG 44-57
Date: April 12, 1944
Advisory Opinion Text
OAG 44-57.
Where no one has filed a petition or declaration of candidacy for a particular office, the central committee of the Republican or Democratic party may not make an original primary nomination.
Dear Sir: It appears from your letter of April 8, 1944, that one Lovelace was elected as commissioner of the Port of Umpqua at the general election held in November, 1940. In April, 1942, he resigned, and one Roberts was appointed to fill the vacancy. At the next general election in November, 1942, Roberts was elected "as his own successor". Your inquiry is whether Roberts was elected for the unexpired term commenced by Mr. Lovelace, or whether he serves a full term of four years from the date of his election.
Section 105-526, O. C. L. A., provides that upon the incorporation of a port the governor shall appoint a board of commissioners. The statute then proceeds:
" * * * The term of office of commissioner shall be determined by lot at the first meeting of the board. Two of said commissioners shall hold office until the first day of January next following the succeeding general election held in said state of Oregon and the remaining three of said commissioners shall hold office until the first day of January following the second next general election in said state. At such first general election two commissioners shall be elected, each to hold office for the term of four years from the first day of January following such election, and at the second general election three commissioners shall be elected, each to hold office for a term of four years from the first day of January following such annual general election. At each succeeding general election held in the state of Oregon thereafter, commissioners shall be elected for a term of four years each, to take the place of those whose terms of office expire on the first day of January following such election. * * *"
Section 105-527, O. C. L. A., provides as follows:
"Vacancies in the board of commissioners occasioned by death, resignation, or removal from within the district shall be filled by the remaining members of such board of commissioners, but said member so elected by the board of commissioners shall hold office only until the first day of January next succeeding the next regular general election held in said state of Oregon. * * *"
It has often been held as a general rule that a person appointed to fill a vacancy in office holds such office until the next general election following his appointment, and the officer elected at such general election holds the office for the full constitutional or statutory period.
Opinions of the Attorney General, 1942-1944, page 578.
Opinions of the Attorney General, 1928-1930, page 591.
State v. Johns, 3 Or. 533.
However, there is authority for making an exception to the rule that the successor so elected hold for the full statutory period where there is a system of rotation, also commonly known as "staggering", in the statute, such as there is in the act under consideration.
I am unable to find any case squarely in point, but this office has rendered an opinion on analagous facts. The question concerned the term of office of a director of a school district---whether the appointee served the full unexpired portion of the term of his predecessor or only until the next regular school election, and, if only the next regular school election, whether the new director so elected at that time serves a full term or only the unexpired portion of the term which had become vacant. It was the opinion of this office at that time that the appointee would hold until the next general school election, and a successor to the appointee should be elected for the unexpired portion of the term of the director whose death, resignation or removal caused the vacancy.
Opinions of the Attorney General, 1922-1924, page 244.
The importance of maintaining rotation in office has often been stressed, as in 22 R. C. L., 552:
"And it seems 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 is that the entire board should not go out of office at once, but that different groups should retire at regularly recurring intervals."
Based upon this authority, it is my opinion that the term of office of Mr.
Roberts expires in January, 1945, the date of the expiration of the term of office of Mr. Lovelace, whose resignation caused the vacancy.
Your letter also states the following problem:
Three commissioners are to be elected in the Port of Umpqua, but only two filings have been made---one Republican and one Democratic. It is proposed by some of the residents of that district that the central committee supply a full ticket for the respective parties, and you advance the opinion that the central committee does not have any authority to name a candidate. I concur in your conclusion.
Section 81-401, O. C. L. A., provides in part as follows:
"A political party within the meaning of this act is an affiliation of electors representing a political party or organization, which, at the last preceding general election polled for its candidates for presidential electors at least twenty per cent of the entire vote cast for that office in the state. Every such political party shall nominate all its candidates for public office, under the provisions of this law and not in any other manner, and it shall not be allowed to nominate any candidate in the manner provided by section 81-1001. * * *" (Italics supplied.)
Both the Republican and Democratic parties are such parties as are governed by the direct primary law under this statute. Coovert v. Olcott, 81 Or. 415.
Section 81-1001, O. C. L. A., provides as follows:
"Any political party which is not subject to the provisions of the primary nominating election law, and any assembly of electors as hereinafter defined, and also individual electors to the number hereinafter specified, by causing a certificate of nomination to be duly prepared and filed in the manner hereinafter provided, may nominate one candidate for each public office to be filled at the election, whose name shall be placed upon the ballots to be furnished as hereinafter provided. * * *"
The method of nomination set forth in said section is limited by its terms to certain new and minor political parties and independent groups, as therein stated, and further, section 81-401, supra, states that the methods outlined in section 81-1001 shall not be available to the Republican and Democratic parties.
Section 81-907, O. C. L. A., provides that:
" * * * Said state, congressional, county and city central committees shall have the power to fill any vacancies occurring among the candidates of their respective parties nominated for city, county, congressional or state office or members of the legislature or United States senator, by the primary nominating election. * * *"
It is apparent that under this statute before the party's central committee can nominate a candidate for a vacancy there must have been a candidate nominated under the provisions of the primary law and he must have died, withdrawn, or for some reason be ineligible, thereby causing a vacancy.
Starkweather v. Hoss, 126 Or. 630.
And see Opinions of the Attorney General, 1926-1928, page 274; Coovert v. Olcott, 81 Or. 415.
Sections 81-402 through 81-407 provide for the filing of petitions for nomination, the time, manner and contents, and section 81-501 et seq., provides for the filing of declarations of candidacy with the secretary of state.
Section 81-603, O. C. L. A., provides as follows:
"* * * The names of the candidates for nomination to each office shall be arranged under the designation of the office, in alphabetical order, according to surnames; there shall be left at the end of the list of candidates for nomination to each different office a blank space in which the elector may write the name of any person not printed on the ballot for whom he desires to vote as a nominee for such office. * * *"
It is my opinion that if a person who desires to become a candidate in the primary election has not filed a petition as outlined in section 81-402, et seq., or followed the procedure required in section 81-501, et seq., he may not thereafter have his name placed on the ballot of such primary election, except that his name may be written in by the voters, as provided in section 81-603.