Oregon Advisory Opinions April 23, 1969: OAG 69-42 (April 23, 1969)
Collection: Oregon Attorney General Opinions
Docket: OAG 69-42
Date: April 23, 1969
Advisory Opinion Text
OAG 69-42.
Governor
State Capitol
You inquire as to the constitutionality of § 2 of Senate Bill 451, which pertains to the term of office of the Superintendent of Public Instruction.
Section 1 of Senate Bill 451 makes certain amendments to ORS 252.150 and provides as follows:
"Section 1. ORS 252.150 is amended to read:
"252.150. (1) A Superintendent of Public Instruction shall be elected for a four-year term at the general election [every four years, beginning in 1966]. He shall qualify and enter upon the duties of his office on the first Monday in January following his election.
"(2) Candidates for the office of Superintendent of Public Instruction shall be nominated and voted for at the primary and general elections as provided in ORS 252.150 to 252.205.
"(3) The names of all candidates for the office of Superintendent of Public Instruction shall be presented for nomination by individual nominating petitions or by declaration of candidacy and the payment of the required fees."
Under this section of the bill the law would be changed so as to provide that a Superintendent of Public Instruction shall be elected for a four-year term at the general election. No particular year is stated when the term is to begin under the proposed bill. Thus under this section the law would be changed to eliminate that provision of ORS 252.150 (1) which now states that the superintendent is to be elected every four years beginning with the 1966 general election .
In opinion of the Attorney General No. 6583 (January 10, 1969) we ruled that the election on November 5, 1968, of Dale Parnell to the office of Superintendent of Public Instruction was only for the unexpired portion of the term of office of Leon P. Minear, the former Superintendent of Public Instruction.
We so ruled because ORS 252.150 (1), supra (quoted in § 1 of Senate Bill 451) fixed both the beginning and end of the term and, therefore, the election to fill a vacancy in that term, could only be for the unexpired portion of that term.
Section 1 of Senate Bill 451 would alter the result of that opinion by eliminating the beginning date of the term. Thus under the proposed bill, whenever a vacancy occurred, an election to fill the vacancy would be for a term of four years.
Section 2 of the bill purports to apply this change retroactively to the general election held November 5, 1968, which was to fill the vacancy in office of the Superintendent of Public Instruction.
Thus § 2 provides:
"Section 2. ORS 252.150, as amended by section 1 of this Act, shall apply to all elections held after 1966."
Thus under the proposed bill the legislature has in offect purported to extend the two-year term of the present Superintendent of Public Instruction to four years.
Article VIII, § 1, Oregon Constitution, provides:
"The Governor shall be superintendent of public instruction, and his powers, and duties in that capacity shall be such as may be prescribed by law; but after the term of five years from the adoption of this Constitution, it shall be competent for the Legislative Assembly to provide by law for the election of a superintendent , to provide for his compensation, and prescribe his powers and duties." (Emphasis supplied)
In State ex rel. Musa v. Minear, (1965) 240 Or. 315, 320, 401 P. (2d) 36, the Oregon Supreme Court held that this section of the Constitution required an election by the voters and that a statute providing for appointment of the superintendent by the State Board of Education was unconstitutional.
Article VIII, § 1, supra, does not fix the term of the superintendent's office.
Thus the legislature is authorized to fix the duration of the term of the Superintendent of Public Instruction under Article XV, § 2, which provides:
" When the duration of any office is not provided for by this Constitution, it may be declared by law ; and if not so declared, such office shall be held during the pleasure of the authority making the appointment. But the Legislative Assembly shall not create any office, the tenure of which shall be longer than four years." (Emphasis supplied)
By ORS 252.150, supra, the legislature fixed the term of office at four years beginning in January of 1967, and our ruling, opinion of the Attorney General No. 6583, supra, held that an election to fill a vacancy in that term was only for the unexpired portion of that term.
Thus the legal issue under Senato Bill 451 is whether the legislature may by statute extend the balance of that term to which the present incumbent was elected and which would expire in January of 1971 to an additional two years which would expire in January of 1973 when under the Constitution and existing statutes the incumbent would be required to run for reelaction at the general election in November of 1970.
The applicable principle of law is clearly stated in 16 C.J.S., Constitutional Law, § 131, p. 548, at p. 550, as follows:
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"Where it is provided by the constitution that certain officers shall be elected by the people, but that the legislature may fix their terms, the legislature may not extend the term of an incumbent either directly, or by changing the time for the election of his successor, but may provide for a longer term of such officers thereafter elected."
The text of C.J.S. cites State ex rel. Perry v. Arrington, (1884) 18 Nev. 412, 4 P. 735.
In that case the Nevada Constitution provided for the election of county assessors and by statute the term for county assessors had been fixed at two years.
By a later statute, however, the legislature attempted to extend for an additional two years the terms of office of all incumbent assessors.
In holding the statute unconstitutional the court said (4 P. at 743):
" To our minds it is enough to say that, since the constitution gives to the people of a county the right to elect their assessor, and they do elect him for two years, under the existing law, they have the right also to elect his successor, and, if the legislature extends his term, their rights are abridged . Should we hold that the term could be extended, we should have to admit that the incumbents would hold the office during the period of extension by virtue of a legislative act rather than by an election. The present assessors have been elected for two years. Should they hold their offices for four, they would have to point to the statute as evidence of their title to the office, instead of their certificates of election. Our opinion is that section 2 of the statute under consideration, extending the terms of county assessors beyond the time for which they were elected, is unconstitutional and void." (Emphasis supplied)
The above decision was characterized as "clearly correct" in the case of State ex rel. Dickerson v. Elwell, (1957) 73 Nev. 187, 313 P. (2d) 796, 798.
In People ex rel. v. Bull, (1871) 46 N.Y. 57, the New York Court of Appeals held unconstitutional a statute
that extended the six-year term of a city judicial officer three years.
Under the Constitution of New York it was provided that:
"* * * 'All judicial officers of cities and villages, and all such judicial officers as may be created therein by law, shall be elected at such times and in such manner as the legislature may direct." (46 N.Y. at 59)
The legislature by statute created and fixed the term of a judicial office in the City of New York. The term was for six years.
After a judge had been elected and taken office under that statute, and just before his term was to expire, the legislature by statute extended the term an additional three years.
In ruling the statute extending the term unconstitutional the court said (46 N.Y. at 60, 61):
"Under this law, at the charter election in 1860, the defendant was elected to this office by the people. He was elected to it for six years from January 1, 1861. By the constitutional provision, he could have attained the office in no other manner, than by an election to it by the people. By the statutory provision, the people could elect him to it for a term no longer, or shorter than six years from its commencement . When the election was made, it had no other, or further force or validity, than that. For that occasion, the constitutional and statutory power conferred, was fully exercised and spent. To hold the office for any time after the expiration of the term of six years, was to hold it again and anew, And to hold the office again and anew, he must be elected by the people anew, otherwise he would not hold it by an election . And to hold it in any other manner than by an election by the people, was to hold it in a way that was in disobedience of the Constitution, and was invalid." (Emphasis supplied)
The court then continued as follows (46 N.Y. at 61):
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"* * * We think it was not competent for the legislature so to do. It is claimed, that the power in the legislature to fix the length of the term is unlimited, and that, therefore, it may fix and alter and change it at pleasure. It is true that, when the duration of any office is not provided by the Constitution, it may be declared by law. (Const., art. 10, § 3.) It is true that the duration of this office was not provided by the Constitution. But every part of the Constitution is equally obligatory; and a power granted in one provision, must be so exercised as not to clash with a restriction upon power, contained in another provision. And as the term fixed for this office by the legislature, was to be filled by an election to it, the legislature had not the power, by changing the term, to put or keep one in the office otherwise than by an election . The officer must be elected; and the legislature could not, by changing the term after one election, take from the people the right, which they had reserved, to choose who should be the officer. The defendant was elected for six years. For so long, the people made known their will that he should use the office. Non constat that they would have willed, that he should use it for nine years. Whether they would or not, the power so to do was reserved to them, and it is an unwarrantable assumption by the legislature, to undertake to exercise it. * * *" (Emphasis supplied)
And later, the court also said (46 N.Y. at 62):
" If the legislature can, by extending the term of such an office, continue in it the holder thereof for one year, it may for any number of years: and thus the duration of the term thereof may be perpetuated by legislative power: and the people, after one exercise of the constitutional power of choosing certain of their own officers, be ever after that deprived of it . So the legislature may as well, from time to time, at the expiration of a term, whether the elective term, or the legislative extended term approaches, again and again extend it, and continue in office an incumbent distasteful to his legitimate constituency. Thus would the theory of the government be subverted, and its practice be prevented. The government is the expressed will of a majority of the people, limited by constitutional restrictions. The practice is, that such will shall be expressed, at frequently returning periods. The clause of the Constitution first quoted, for all localities affected by it, embodies that theory. If the legislature may take from the people of a locality, the power at
properly returning occasions, of electing certain officers, it effectually draws to itself the power of filling those offices. * * *" (Emphasis supplied)
The just quoted case was followed in People ex rel. Williamson v. McKinney, (1873) 52 N.Y. 374, 378-379.
Based on the foregoing authorities and analysis it is our opinion that (1) § 2 of Senate Bill 451 purports to extend the term of the incumbent Superintendent of Public Instruction an additional two years and (2) § 2, if enacted into law, would be in violation of Article VIII, § 1, Oregon Constitution, supra, by infringing on the people's right to elect a successor Superintendent of Public Instruction upon the termination of the present term of office of the existing incumbent.