Oregon Advisory Opinions March 24, 1971: OAG 71-15 (March 24, 1971)

OAG 71-15.

On January 11, 1971, the opening day of the Legislative Session, the newly elected Speaker of the House of Representatives published the election results for the Office of Governor and declared the Honorable Tom McCall to be the duly elected Governor. However, at the time no Senate President had been elected, and the Senate was not able to organize until the 12th day of the session, even though a quorum was present from its opening. The Senate had convened under a temporary chairman, and all members of the Senate were present with all members of the House when the Speaker published

the election results.

This opinion is requested to determine the validity of this publication of the election results in light of Article V, Section 4 of the Oregon Constitution, which provides in part:

" . . . the returns of every Election for Governor, shall be sealed up, and transmitted to the Secretary of State; directed to the Speaker of the House of Representatives, who shall open, and publish them in the presence of both houses of the Legislative Assembly."

The question is whether the Senate must be formally organized before the election results may be published in the presence of both houses of the Legislative Assembly, thereby affirming the election of the Governor by the people.

The answer to this question is clearly no. Article V, Section 4 merely requires that publication take place in the presence of both houses of the Legislative Assembly. There is no language contained therein which specifically or impliedly requires that the Senate be formally organized before this publication ceremony may take place. The Senate is not required to exercise any legislative duty or function unless the publication reveals a tie vote, in which case Article V, Section 5 requires the joint membership of both houses of the Legislative Assembly to elect the Governor. However, under the facts involved in this question Tom McCall was clearly the majority candidate when the publication was made.

The fact that the Senate may be assembled, in session and conducting business, and yet not be organized, is illustrated

by Article IV, Section 11 of the Oregon Constitution:

"Each House when assembled, shall choose its own officers . . .."

In the absence of an elected permanent chairman, the senior member or indeed any member of a legislative body may take the chair. Mason, Manual of Legislative Procedure , § 580(5) (1962 ed.). Of course the Senate must assemble before choosing either permanent or temporary officers. While it is unlikely that the Senate would be able to function normally without being organized, it can function as an offically assembled body with a temporary slate of officers. Presence in the form of an assembled body is all that Article V, Section 4 commands.

In State ex rel. Donnell v. Osburn , 347 Mo. 469, 147 S.W.2d 1065 (1941), the court issued a writ of mandamus requiring the Speaker of the House of Representatives to publish the election results for the Office of Governor. The constitutional provision in Missouri was similar to Oregon's Article V, Section 4, and directed the Speaker to publish the election results for Governor before a joint session of the House and Senate.

The court discussed the possibility that the constitutional provision requiring the presence of the House of Representatives and the Senate conferred upon them some legislative function, but concluded that was not its intent.

"A more compelling reason for the presence of the members of the joint session lies in their capacity as witnesses . It is reasonable that the returns for the important executive officers should be opened and made public by a public officer in

The fact that the Senate was not formally organized would not affect the ability of its members to act as witnesses. Their physical presence is all that is necessary.(fn1) Thus we conclude that the Senate need not be organized at the time of the publication of the election returns to fully and technically comply with Article V, Section 4 of the Constitution.

While the Senate need not be organized to comply with Article V, Section 4 it might be inferred that the House would have to be organized because of the specific duties conferred on the Speaker of the House by that section. We answer this question to further clarify the meaning and purpose of Article V, Section 4.

In State ex rel. Donnell v. Osburn , supra , the court described the function of the Speaker of the House in publishing the election results for the Office of Governor, as simply ministerial and involving no legislative duties. The court thus issued a writ of mandamus compelling him to pub

lish the elections results as directed by the Constitution.

If the function of publication is only ministerial and involves no discretion in its exercise, it appears that publication by a temporary Speaker of the House would fully accomplish the purpose of and comply with Article V, Section 4. Publication of the results by a permanent Speaker of the House would add no force or effect to the mandate of the people. If the permanent Speaker refused to publish the election results he would be subject to a writ of mandamus under the holding of Johnson v. City of Astoria , supra . The issuance of a writ of mandamus means that the court has carried out the ministerial duty imposed upon a public officer who exercises no discretion in the performance of that duty. Thus if the court could perform the publication function directed by Article V, Section 4, then a temporary Speaker elected or appointed by the members of the House, as a permanent Speaker would be, can also carry out such ministerial duty and comply fully with the Constitution.

We are also asked to determine whether Governor McCall is holding his office de facto or de jure . In our opinion, he is clearly holding office de jure . Obviously if the publication ceremony on January 11, 1971 was in compliance with Article V, Section 4, as we have concluded it was, the office is being held de jure . Even if we assume that the publication was not valid and therefore that Governor McCall has not yet entered his new term of office, he is then holding office as a holdover. Article XV, Section 1 of the Oregon Constitu

tion provides that all officers, except members of the Legislative Assembly, hold office until their successors are elected and qualified. ORS 176.020 provides that the term of office of Governor ceases when his successor (in this case himself), having been declared elected by the Legislative Assembly as provided in the Constitution, is inaugurated by taking the oath of office. Thus under either circumstance Governor McCall is holding office de jure .

1 Johnson v. City of Astoria , 227 Or. 585, 363 P.2d 571 (1961) illustrates that mandamus would likely lie in Oregon as it did in Missouri to compel the legislature to conform to the mandate of the Constitution.

"The writ of mandamus may properly compel an officer to perform such act as the law specifically enjoins, but the writ will not lie unless the duty sought to be enjoined is prescribed by the law as devolving upon such officer." 227 Or. at 590, 363 P.2d at 573.