Oregon Advisory Opinions January 26, 1961: OAG 61-15 (January 26, 1961)

OAG 61-15.

You have inquired if it is necessary for a county civil defense director to be a citizen of the United States. ORS chapter 401 creates within the executive branch of government an office of civil defense with a state director as the

executive officer, subject to the direction and control of the Governor.

ORS 401.080 provides for local civil defense ORGAnization, including that of a county, and reads in part:

"(1) * * * Each local ORGAnization for civil defense shall have a director appointed by the executive officer or governing body of the political subdivision. The local director shall have direct responsibility for the ORGAnization, administration and operation of such local ORGAnization, subject to the direction and control of such executive officer or governing body. * * * After appointment and qualification for office , the director of civil defense of any local ORGAnization, * * * shall be qualified to administer the loyalty oath provided in ORS 401.160 within this state under such regulations as the director shall prescribe." (Emphasis supplied)

It would appear that this statute designates the position as an office. Here we have a position which is created by law with statutory duties (ORS chapter 401), which position is designated an office by statute (ORS 401.080 (1), supra) and which exercises the sovereign functions of government.

Based on these facts we find that the office of county director of civil defense is a public office: Recall Bennett Committee v. Bennett, (1952) 196 Or. 299, 249 P. (2d) 479.

This office, in opinion No. 4413, dated April 3, 1959, advised that a proposed law prohibiting employment solely on the grounds of noncitizenship was probably unconstitutional as violating the Fourteenth Amendment of the United States Constitution.

In the leading case of Wieman v. Up-degraff, 344 U.S. 183, 97 L. Ed. 216, 73 S. Ct. 215, the United States Supreme Court discussed the right of persons to public employment. However, here there appears to be a distinction in the law between the right of a noncitizen to work in public employment and the right to hold public office.

We must assume in the instant case that the noncitizen in question was foreign born and an alien. As stated in Engen v. Union State Bank, (1929) 118 Neb. 105, 109, 223 N.W. 664:

" 'Foreigners by birth are presumed to be aliens. The status of a person as to alienage, when once established, is presumed to continue until the contrary is proved.' (citing authorities).

"The mere fact of long residence in this country is insufficient to overcome this presumption. Ehrlich v. Weber , 114 Tenn. 711."

An "alien" is defined in 3 C.J.S., Aliens, § 1, pp. 523-524:

"An alien is a citizen or subject of a foreign state; a person owing allegiance to a foreign government; a foreigner; one who does not, either by nativity or voluntary adoption, owe allegiance to the government within whose territory he dwells."

There is a presumption that in the absence of a contrary showing a person who was once a citizen of a foreign country, even though now residing in the United States, still remains a citizen of such foreign country. 2 Am. Jur., Aliens, § 4.

A resident alien owes a temporary allegiance to the country in which he is domiciled but said alien leaves outstanding a foreign call on his loyalty which international law not only permits the United States government to recognize but commands it to respect. As stated in 2 Am. Jur., Aliens, § 13, p. 470:

"* * * it is not unreasonable to suppose that the foreign born, whose allegiance is first to their own countries, and whose ideals of governmental environment and control have been engendered and formed under entirely different regimes and political systems, have not the same inspiration for the public weal, and are not as well disposed toward the United States as those who, by citizenship, are a part of the government itself. * * *"

At common law an alien born person, even though naturalized, is not entitled to hold office: Cushing's, Legislative Assemblies, Articles 56 and 57.

As stated in Walther v. Rabolt, (1866) 30 Cal. 186, 188-189:

"* * * It may be said, generally, that the right to vote and of eligibility to office, are political, and in some sense correlative rights. At common law, an alien had no recognized political rights. He was permitted to enjoy certain civil rights, but even these were hedged in by many restrictions and limitations. The English common and statutory law was very chary of extending political privileges to those who were alien born; so much so, that when an alien was naturalized by Act of Parliament, a proviso was appended excluding him from holding office---a consequence which would otherwise follow as a matter of course from the naturalization. * * *"

It appears to be the general rule in the United States that aliens are not entitled to exercise political rights other than those which are conferred by law: Commonwealth v. Papsone, (1910) 44 Pa. Super. 128, 79 A. 928.

In 67 C.J.S., Aliens, § 13, the rule is stated that citizenship is necessary, at least for an elective office, even in the absence of a constitutional or statutory provision to that effect. The court in the early case of State v. Van Beek, (1893) 87 Iowa 569, 54 N.W. 525, 527, stated:

"* * * Our first inquiry is whether an alien can hold the office of sheriff under the laws of Iowa. There is no provision in our constitution or statute upon that sub

ject, yet it is certainly a fundamental principle of our government that none but qualified electors can hold an elective office unless otherwise specially provided. * * *"

The leading case dealing with the question as to whether an alien could hold a public office is State v. Smith, (1861) 14 Wis. 539. In that case a candidate for the office of sheriff contended that since there was an absence of constitutional or statutory provisions prohibiting the election of aliens to the office, the electors were free to confer it upon whom they pleased. He further argued that since the Constitution provided citizenship qualification for the Governor and judges that by implication the other offices were open to whomever the electors might choose. The court, quoting from an opinion of the Supreme Court of Massachusetts decided in 1811, stated at pages 542-543:

"* * * 'Now we assume, as an unquestionable principle of sound national policy in this state, that as the supreme power rests wholly in the citizens, so the exercise of it, or of any branch of it, ought not to be delegated by any but citizens, and only to citizens . It is therefore to be presumed that the people, in making the constitution, intended that the supreme power of legislation should not be delegated but by citizens. And if the people intended to impart a portion of their political rights to aliens, this intention ought not to be collected from general words which do not necessarily imply it, but from clear and manifest expressions which are not to be misunderstood .' * * * 'If, by this provision, aliens would acquire any political rights, to the diminution of the rights of citizens, we should, for the reasons before given, strongly incline to believe that the legislature were restrained from making this provision. For as the political rights arising under the constitution are manifestly the rights of the citizens, the language of the constitution ought to be so construed, if practicable, that these rights should not be diminished by sharing them with aliens.' " (Emphasis supplied)

The rule is well stated in 2 Am. Jur. Aliens, § 20, at p. 473:

"At the very foundation of all independent popular governments lie the principles, the enforcement of which needs the aid of neither statutory nor constitutional enactments or restrictions, that the government is instituted by the citizens, and that it is to be administered, and its powers and functions exercised, only by them and through their agency . Viewed in the light of these principles, it is obvious that an alien is ineligible to hold public office unless specially authorized by statute . So, if a person who is not an elector because he is an alien attempts to exercise the functions of a public office, the courts, on proper proceedings being instituted for the purpose, will oust him. * * * there seems to be no doubt regarding the ineligibility of an alien to hold public office * * *." (Emphasis supplied)

The rule in the Smith case, supra, was reaffirmed by the Supreme Court of Wisconsin in State v. Trumpff, (1880) 50 Wis. 103, 5 N.W. 876, when the court said, speaking of State v. Smith, at p. 878:

"* * * In the first of these cases it was held to be a fundamental principle of our government that a person not an elector of the state is ineligible to hold a public office therein , although our constitution and statutes do not expressly so ordain. * * *" (Emphasis supplied)

Although there is some authority to the contrary to the effect that where there is no constitutional or statutory requirement of citizenship an alien may hold office (see Connell v. State, (1924) 196 Ind. 421, 144 N.E. 882) the majority rule favors the proposition set forth in State v. Smith, supra. See also, Scott v. Strobach, (1873) 49 Ala. 477; State v. Murray, (1871) 28 Wis. 96; Mecham, Public Officers, § 74, p. 27; 19 R.C.L., Municipal Corporations, § 213, p. 914.

An examination of the Oregon Constitution reveals certain qualifications for all county officers. Article VI, § 8, provides, in part:

"Every county officer shall be an elector of the county * * *."

In a former decision, Opinions of the Attorney General, 1922-1924, p. 276, this office ruled that an alien could hold the office of deputy assessor. This opinion expressly overrules that part of the ruling. See also, Opinions of the Attorney General, 1924-1926, p. 80, which impliedly overrules the former opinion by holding that a noncitizen could not hold the office of deputy district attorney.

It could be justified by common logic that the direction of civil defense for a county should not be placed in the hands of a noncitizen who does not legally owe his primary allegiance to the United States of America. Native citizens are justly presumed to be imbued with natural allegiance to this government which unnaturalized aliens do not possess. It is, therefore, our opinion that an alien, not being an elector under Article VI, § 8, of the Oregon Constitution, is not eligible to hold the office of county director of civil defense.