Oregon Advisory Opinions October 09, 1967: OAG 67-144 (October 9, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-144
Date: Oct. 9, 1967
Advisory Opinion Text
OAG 67-144.
Until appointee takes the oath of office prescribed by Article IV, § 31, for legislators, he is not qualified to perform the duties of the office of state legislator and is not entitled to the salary attached to the office by ORS 171.072 (1).
Secretary of State
You ask as of what date the salary of the Honorable M. Keith Wilson should commence. The facts are as follows.
On July 1, 1967, the resignation of the Honorable Don McKinnis, State Representative for the twenty-fourth district became effective.
Thereafter Governor McCall issued his call for a special session to begin October 30, 1967.
The foregoing events created a vacancy in the Legislative Assembly within the meaning of ORS 171.050 (1) which provides as follows:
"When any vacancy occurs in the office of * * * Representative from any legislative district or subdistrict due to * * * his resignation in writing filed with the Secretary of State * * * and no election at which the vacancy could be filled by the voters of the district or subdistrict is to intervene between the time of the occurrence of the vacancy and the time set for the convening of a regular or special session of the Legislative Assembly * * *, the vacancy shall be filled by the appointment of a qualified elector of the district by the county courts or boards of county commissioners of the counties constituting the district in which the vacancy exists."
Pursuant to the above provisions and ORS 171.060 (1) the Secretary of State notified the County Courts of Union and Wallowa Counties of this vacancy, and on August 7, 1967, the two county courts met and appointed the Honorable M. Keith Wilson to fill the vacancy created by Mr. McKinnis' resignation. Pursuant to ORS 171.060 (2) the county courts transmitted their order of appointment to the Secretary of State who thereupon issued his certificate of Mr. Wilson's appointment.
Mr. Wilson thereafter by letter directed to the Secretary of State advised that it appeared to him he was eligible to receive the statutory compensation for the office of state representative as of August 7, 1967, the date on which he was appointed as a State Representative by the Union and Wallowa County Courts.
You advise that
"This office does not have on file an Oath of Office for Mr. Wilson nor do we have any official record from the House of Representatives showing that Mr. Wilson had been 'seated' in that body."
In connection with the salary of legislators ORS 171.072 (1) provides as follows:
"Except as otherwise provided in subsection (2) of this section, a member of the Legislative Assembly shall receive for his services a salary at the rate of $250 monthly, payment to be made in the same manner as the salaries of other elected state officers and employes." (Emphasis supplied)
With regard to the oath of office, Article IV, § 31, provides as follows:
"The members of the Legislative Assembly shall before they enter on the duties of their respective offices, take and subscribe the following oath or affirmation; ---I do solemnly swear (or affirm as the case may be) that I will support the Constitution of the United States, and the Constitution of the State of Oregon, and that I will faithfully discharge the duties of Senator (or Representative as the case may be) according to the best of my Ability, And such oath may be administered by the Govenor [sic], Secretary of State, or a judge of the Supreme Court." (Emphasis supplied)
In 42 Am. Jur., Public Officers, § 125, p. 972, the text states:
"* * * Where the Constitution or statute makes the official oath indispensable, the officer cannot be considered as qualified until he takes it, and if he neglects to take it, and proceeds to execute the duties, he cannot justify his doings as an officer. * * *" (Emphasis supplied)
Is then the oath prescribed by Article IV, § 31, an indispensable condition precedent without which a legislative appointee may not perform the duties of office and receive compensation therefor?
Article IV, § 31, supra, by its use of the word "shall" is clearly mandatory in form. But is it also mandatory in substance?
One of the cases cited by American Jurisprudence in support of the quoted proposition is Johnston v. Wilson et al., (1820) 2 N.H. 202. That case was an action for converting two horses and a sleigh seized by the defendant Wilson purporting to act as a collector of taxes but who had never taken the oath of office.
In 2 N.H. at 207, 208, the court noted:
"By one statute, the form of the oath to all town officers is prescribed.(2) By another it is directed, that 'an oath' shall be 'administered unto them agreeably to the form prescribed;'(3) and they are, if present, to be notified 'to take the oath of office in open town meeting;'(4) and if not present, they are forthwith to receive notice to take it, and for a neglect are exposed not only to a fine, but seem to be disabled to act until sworn.(5) Because the statute, in another section, expressly declares, that these 'officers shall continue in office the space of one year or until the next annual meeting for the choice of town officers and until others be chosen and sworn in their room.'
"The clause as to filling vacancies follows the above section and provides, that 'such officer or officers so chosen and sworn shall have the same power and authority as though chosen at the annual meeting.'
"And the form of the oath anciently corresponded with these clauses, by saying you will 'perform the duties of the office until another be chosen and sworn in your stead.' "
The court then concluded that judgment should be given to the plaintiff and said (2 N.H. at 208):
" It is, therefore, manifest, that those town officers, once chosen and sworn, are the only ones qualified to perform official duties, until new ones are sworn, as well as chosen 'in their room.' The town is thus never destitute of officers duly qualified; and it cannot be reasonable or necessary, that while the offices are already filled by persons duly qualified, others not duly qualified should be enabled to perform the duties of them.
"There seems to be an unusual solicitude evinced in the statute concerning the oath of office; and the practice in respect to it has always been very strict. How far it may always have been conformable to principle, we do not undertake to decide. But, in this case, where the defendant himself is the officer, and, if duly appointed in November, admits expressly, that he has not since taken the oath of office, we are satisfied he is not qualified to perform any official act under that appointment. " (Emphasis supplied)
Article XV, § 3, contains a requirement as to oaths similar to that of Article IV, § 31, in that it requires
"Every person elected or appointed to any office under this Constitution, shall, before entering on the duties thereof, take an oath
or affirmation to support the Constitution of the United States, and of this State, and also an oath of office.---" (Emphasis supplied)
In construing this provision and also original Article VII, § 21, which provided for the judicial oath of office and required its transmission to the Secretary of State, the Oregon Supreme Court in State ex rel. Smith v. Tazwell, (1941) 166 Or. 349, 352, 111 P. (2d) 1021, said:
"1. Hence, the taking and transmission of the oath above referred to are necessary formalities for the qualification of all circuit judges before they can enter upon the duties of their offices. * * *" (Emphasis supplied)
In that case the court had before it a quo warranto proceeding challenging the right of Judge Tazwell to continue to hold office. Judge Tazwell was the incumbent judge and had been defeated in the election for circuit judge but his opponent had died before being able to take the oath of office. The Governor appointed another as circuit judge but Judge Tazwell refused to surrender his office.
In considering the question as to who held title to the office of circuit judge the court in addition to Article XV, § 3, and Article VII, § 21, above mentioned, also considered Article XV, § 1, which provides:
"All officers, except members of the Legislative Assembly [for whom a different rule as to term of office is specified by Article IV, § 4] shall hold their offices until their successors are elected, and qualified. " (Emphasis supplied)
The Tazwell case, in view of the foregoing quoted provisions of the Constitution pertaining to oaths of office by judges and public officers, and the provision that an incumbent holds office until his successor is elected and qualified, held that a judicial candidate who was elected but who died before taking the oath of office never qualified. Accordingly, the defeated incumbent judge held over, there was no vacancy in office, and the purported appointment by the Governor to fill the supposed vacancy in office of circuit judge which in fact never existed was a nullity.
Finally, there is ORS 236.010 (4) and the case of State v. Colvig, (1887) 15 Or. 57, which was a quo warranto proceeding challenging the right of a district attorney to hold office because he had failed to take and file his oath of office on the first Monday of July following his election but which oath was taken and filed a few days thereafter.
The court construed what is now ORS 236.010 (4) which provides:
"An office shall become vacant before the expiration of the term if:
"(4) The incumbent refuses or neglects to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law."
In denying relief to the plaintiff the court said (15 Or. at 61):
"By section 2, chapter 41, page 691, General Laws, it is provided: 'The term of office of a district attorney shall commence on the first Monday of July next following the election of such attorney, and before entering upon such office the person elected thereto must qualify therefor by filing with the Secretary of State his certificate of election, with an oath of office indorsed thereon, and subscribed by him to the effect that he will support the Constitution of the United States, and of this State, and faithfully and honestly demean himself in office.'
"And it is provided by section 48, chapter 14, page 576, General Laws: 'Every office shall become vacant on the occurring of either of the following events, before the expiration of the term of such office':---
" '6. His refusal or neglect to take his oath of office, or to give or renew his official bond, or to deposit such oath or bond within the time prescribed by law.' " (Emphasis supplied)
After setting forth these statutes the court then continued:
"There is no statute in this State prescribing the time within which the official oath of a district attorney must be taken and filed. It is true the term of office begins on the first Monday of July next following the election; but the newly elected officer is not bound to qualify on or before that day, or upon failure to do so incur a forfeiture of his office. 'Before entering upon such office the person elected thereto must qualify therefor,' etc., is the language of the statute, and it raises a very strong implication that some time may be allowed to elapse after the term begins before the newly elected officer need qualify. The only result that could follow a delay in qualifying is that he could not enter upon the duties of said office without first having qualified by taking the official oath and otherwise complying with section 41, supra. * * *" (Emphasis supplied)
It is clear from the provisions of ORS 236.010 (4), supra, that the legislature deemed the taking of an oath (as distinguished from the mere time for its taking, see State v. Colvig, supra (15 Or. at 62) and annotation in 158 A.L.R. 643) important enough to declare that the failure to take the oath results in a vacancy in office.
And as State v. Colvig, supra, indicates (15 Or. at 61) until the oath is taken a public officer cannot enter upon the duties of his office.
From all the foreging authorities therefore we deduce the principle that the constitutional requirement of an oath of office is not a mere formality but a mandatory requirement and a condition precedent to a legislator or other public officer qualifying for and acquiring the title to the office for which he was elected or appointed.
If, then, a legislator has not taken the oath of office, is he entitled to the salary which attaches to and is an incident of the office?
In the case of Thomas v. Owens, (1853) 4 Md. 189, the court considered among other matters the question of what was the effective date of the taking of office of the Comptroller of the State Treasury for the purposes of determining when his salary began. The court had before it a constitutional provision providing that the comptroller (4 Md. at 219): "* * * 'shall serve for two years from the day of the election' " and a constitutional provision (4 Md. at 220):
"* * * 'that every person elected or appointed to any office of profit or trust under the constitution or laws made pursuant thereto, before he shall enter upon the duties of such office, shall take and subscribe' the oath or affirmation given in the section."
As to the effect of these provisions the court said (4 Md. at 220):
"Now, we hold, that the late Comptroller could not be considered as in office until he qualified by taking the oath prescribed by the 4th section of the 1st article. After his election and commission by the Governor, he had the right to invest himself with the powers and entitle himself to the salary, by qualifying in the manner pointed out by the constitution; but, until he actually did qualify, he was no more Comptroller than any other citizen; his qualification being an indispensable prerequisite to his investiture with the authority and responsibilities of the office."
In 4 Md. at 222, the court said:
"From this it follows, we are of the opinion, that the appellant was not legally the Comptroller of the treasury, nor entitled to the salary affixed to that office until he qualified, according to the requirements of the constitution, which he did, on the 10th day of December 1851." (Emphasis supplied)
Of similar import is the case of The City of Philadelphia v. Given, (1869) 60 Pa. St. 136, 139, where the court held that the failure of a city commissioner to qualify for office by executing and furnishing a bond as required by statute disentitled him to the compensation attached to such office. See also Williams v. United States, (1888) 23 Ct. Cl. 46, 51, 53, where the court held that an individual required to give a bond before entering upon the duties of the office of minister resident and consul-general and who did not give a bond, did not qualify for the office and was not entitled to a salary.
Based on the foregoing authorities and in answer to your question it is our opinion that until Mr. Wilson takes the oath of office prescribed by Article IV, § 31, he is not qualified to perform the duties of the office of state legislator and, therefore, is not entitled to the salary attached to the office by ORS 171.072 (1), supra.
We add, however, that once the oath is taken, Mr. Wilson has done everything that the Constitution requires him to do to qualify to perform the duties of that office during the interim between legislative sessions and at that time would be entitled to receive the salary attached to the office.
Although the House of Representatives might not yet have formally "seated" Mr. Wilson at the time the oath of office is taken, we do not view the seating process under Article IV, § 11 (each house shall judge of the election, qualifications, and returns of its own members), as a condition precedent to the performance of legislative duties or to the receipt of a salary by a legislative appointee whose appointment becomes effective and who has done all that is constitutionally required of him to qualify during the interim between legislative sessions. For to take the contrary view that a legislator would have to be seated before he could act would mean that despite the prompt appointment of a legislator to fill a vacancy under ORS 171.050 (1), supra, and his taking of the oath under Article IV, § 31, the vacancy would in fact continue without a legislator qualified to perform duties until the Legislative Assembly commenced its biennial session or was called into special session and could formally pass upon the appointee's qualifications. Such a construction does not appear to us to be a reasonable construction of Article IV, § 31, or of Article IV, § 11, nor does it appear to us to be a reasonable implementation of the statute designed to fill vacancies in the kind of situation we have here (ORS 171.050 (1) and, therefore, we do not adopt such construction.