Oregon Advisory Opinions August 16, 1960: OAG 60-99 (August 16, 1960)

Oregon Attorney General Opinions

1960.

OAG 60-99.

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You state that according to the preliminary census figures supplied by the Department of Commerce, Bureau of Census, Regional Field Office, Seattle, Washington, the County of Hood River has a current population of 13,322 and that as such and as is provided in ORS 46.025 (1)(c), this county is now entitled to a district court. The present justice of the peace was nominated in the May primary as a candidate to succeed himself and was so certified by the County Clerk of Hood River County.

You point out that if a district court is in fact established in Hood River County, the Secretary of State must certify such office to the county clerk and the Secretary of State must accept certificates of nomination from nonpartisan judicial candidates for election at the general election of November 8, 1960.

You ask to be advised whether the Secretary of State must instruct the county clerk of the county to set aside the present incumbent's nomination to succeed himself as justice of the peace.

ORS 46.025 (1)(c) provides for a district court in every city which is a county seat of a county having a population of 13,000 or more and less than 16,000.

ORS 46.025 (2)(a) provides:

"(2) The establishment and ORGAnization of a district court in any city meeting the requirements of subsection (1) of this section is postponed:

"(a) Until the expiration of the elective term of the justice of the peace in office in the city at the time it first meets such requirements, unless such justice of the peace is legally qualified to be a district judge for the district court; * * *"

ORS 46.025 (3) provides:

"If the establishment and ORGAnization of a district court is postponed under paragraph (a) of subsection (2) of this section, a legally

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qualified person to be a district judge for the district court, when such court is established and ORGAnized, shall be nominated and elected in the manner provided by law for district judges at the primary and general elections next preceding the date of the expiration of the elective term of the justice of the peace in office in the city at the time it first meets the requirements of subsection (1) of this section."

An examination of the records of the Oregon State Bar discloses that the incumbent holding the office of justice of the peace in Hood River County is not a member of the Oregon State Bar and therefore would not be legally qualified to serve as district judge.

The expiration of the present elective term of the justice of the peace will occur on the day preceding the first Monday in January 1960. Oregon Constitution, Article II, § 14. See also Opinions of the Attorney General, 1956-1958, p. 95. Where the ORGAnization of the district court is postponed until expiration of the incumbent's term, ORS 46.025 (3) provides for nomination and election of a district judge at the primary and general elections next preceding the date of the expiration of the elective term of the justice of the peace. Accordingly, the office of district judge will need to be certified to the county clerk by the Secretary of State as one to be filled at the November 8, 1960, general election, such election being the general election "next preceding the date of expiration of the elective term of justice of the peace."

Opinions of the Attorney General, 1950-1952, pp. 81 and 390, touch upon the question you raise. In the first opinion the establishment of district courts in counties having a population exceeding 50,000 was considered. The headnote of this opinion reads:

"If the office of the justice of the peace be abolished after the election of a new justice of the peace and before his term begins, such person would take no office, and would not become district judge by virtue of his election."

This opinion refers to State v. Beveridge, (1918) 88 Or. 334, 337, 171 P. 1173, in which it was observed that except for the 1913 law establishing district courts, the successor of the former justice of the peace would be chosen in the 1918 election but that

"* * * when that time arrives there will be no such office as justice of the peace in such cities, the position having been abolished. That disposes of the office itself. The incumbent disposed of himself by the resignation resulting from his acceptance of the new office. * * *"

In the second opinion of the Attorney General (Opinions of the Attorney General, 1950-1952, p. 390) the question was presented whether the county clerk could omit the office of the justice of the peace from the ballot in certain justice of the peace districts to be abolished in the county. The headnote sums up the conclusion of the Attorney General as follows:

"A public officer has no contractual or property right in an office.

"When a judicial office is legally abolished subsequent to election of a candidate therefor, but before qualification and commencement of term, the successful candidate can take no office."

From the foregoing opinions and the authorities cited in them, a similar conclusion appears to apply to your question. Since the office of the justice of the peace will be legally abolished subsequent to the nomination of present incumbent to succeed himself as justice of the peace but before his qualification as justice and the commencement of his term, there will be no office to which the nominee can be elected and none which he could assume.

Accordingly, it is our opinion that the Secretary of State should certify the office of the district judge for election and that the county clerk should omit the office of justice of the peace form the election notice and official ballots for the forthcoming election in November. While the certification of nomination may be accepted as a matter of form, the nomination by reason of the abolition of the office of the justice of the peace would not, however, appear on the November ballots.