Oregon Advisory Opinions July 05, 1961: OAG 61-98 (July 5, 1961)
Collection: Oregon Attorney General Opinions
Docket: OAG 61-98
Date: July 5, 1961
Advisory Opinion Text
OAG 61-98.
State Senator
Information furnished by you shows that the Port of Cascade Locks, at the general election in 1960, elected two commissioners whose terms expired the following January. One of the commissioners elected was an appointee to the commission to fill a vacancy occurring in the commission. The term of the resigning commissioner did not expire the following January but continued for another two years.
Under ORS 777.165 the person filling the vacancy holds office "until January 1 next succeeding the next general election held in the state." Thus, at the 1960 general election three offices instead of the two full term offices should have been filled by the electorate.
At the very outset the question arises as to the validity of the election in its entirety. Research fails to disclose any cases considering the very point in issue. There are cases involving elections where there was a failure to designate the long and short terms where two positions were to be filled at the election. Elections in these cases were held void for uncertainty except where there was evidence clearly disclosing the voters' choice. Page v. Kuykendall, (1896) 161 Ill. 319, 43 N.E. 1114; State ex rel. Valentine v. Griffey, (1876) 5 Neb. 161; State of Ohio ex rel. The Attorney General v. Cogswell, (1858) 8 Ohio St. Rep. 620.
Although the above rule is persuasive in your problem I do not think it is controlling. This is on the assumption that, except for the failure to designate the office involving a vacancy created by resignation on the ballot, the election was conducted in a regular and legal manner.
In view of the above facts we now come to grips with your specific question, that is, who has the authority to fill the vacancy now existing in the board of port commissioners?
ORS 777.165 (1) provides:
"Vacancies in the board occasioned by death, resignation or removal from within the district, shall be filled by the remaining members of the board. The member so elected by the board shall hold office only until January 1 next succeeding the next regular election held in this state."
Subsection (2) of this section then authorizes the Governor to appoint members to the board where there is a "failure to nominate and elect board members" upon the original ORGAnization of the port district or where there has been an annexation and subdistricting of the port district. This subsection also requires a reORGAnization of the board by determining new terms of the members by lot.
Considering the last sentence of ORS 777.165 (1), supra, and the power of appointment vested in the Governor under subsection (2), it is obvious that the law is not clear on the point in issue thus creating an ambiguity. Where this condition exists rules of construction are brought into play. Berry Transport, Inc. v. Heltzel, (1954) 202 Or. 161, 272 P. (2d) 965.
There is no doubt that the problem presented would not have arisen had it not been for the failure of those charged with the conduct of the election to place the third position on the ballot. This position would be for the unexpired term of the resigning member. Opinions of the Attorney General, 1942-1944, p. 439. Failure to elect a person to fill the unexpired term of the person resigning gives rise to three possible situations. One, the election was void; two, the election was valid and an automatic resignation came about when the board member filling the vacancy caused by resignation qualified for the full term office to which he was elected; and, three, the vacancy occurring in the unexpired term is to be filled by appointment by the Governor requiring a reORGAnization of the board as to their terms of office.
It is felt that the second situation mentioned above more nearly complies with the law than the other two. This will result in giving effect to the election and not thwart the will of the voters as to the two full term offices and will not require the overriding of the express conditions in ORS 777.165 (2), giving rise to and resulting from appointment made by the Governor.
It is recognized that the tenure of the person appointed to fill the vacancy ceases on January 1 following the next general election, ORS 777.165 (1), supra. This condition is no different in substance than the requirements placed upon gubernatorial appointments made under § 16, Article V, Oregon Constitution.
Failure to elect a person to fill a vacancy brings into operation § 1, Article XV, Oregon Constitution, which provides:
"All officers, except members of the Legislative Assembly, shall hold their offices until their successors are elected, and qualified."
Speaking of § 1 in conjunction with § 2 of Article XV, of the Constitution, the Supreme Court in State ex rel. v. Compson, (1898) 34 Or. 25, 30, 54 P. 349, said:
"* * * But when the constitution in one clause inhibits the legislature from creating an office the tenure of which shall be longer than a specified number of years, and in another provides that such officer shall hold until his successor is qualified, the two provisions are to be read and interpreted together, and the result is that the legislature is inhibited from creating an office the tenure of which shall be for a longer period than the time specified in the constitution; but if, at the expiration of that period, no successor has been elected and qualified, the incumbent holds over by the paramount right of tenure, which the constitution supplies, until he is superseded by a qualified successor, appointed or elected under some provision of law, and a failure of the particular authority to elect his successor does not create a vacancy in the office : * * *" (Emphasis supplied)
Applying the above constitutional provisions to the facts presented it must be concluded that a vacancy did not arise in the office of the appointee board member filled pursuant to ORS 777.165 until there was a resignation by the incumbent. It matters not whether this resignation took place prior to or after January 1. Under any conditions it must take place prior to or simultaneously with the acceptance of the second office involving the four year term. See State of Oregon ex rel. O'Hara v. Appling et al., (1959) 215 Or. 303, 334 P. (2d) 482.
It is my opinion that a vacancy occurred in the office of the board of port commissioners for the unexpired term of the resigned board member if not prior to then simultaneously with the acceptance and qualification for the second office. The vacancy is to be filled by the commissioners in office pursuant to ORS 777.165.