Oregon Advisory Opinions January 01, 1959: OP 4308

Advisory Opinion Text

The Secretary of State, in resigning from office, must submit to the Governor an unconditional resignation, and before vacating office must deliver to his suc­cessor all moneys, books and records pertaining to the office.

No. 4308 January 9, 1959 Honorable Robert D. Holmes Governor of Oregon This will acknowledge your letter under date of January 8, 1959, transmit­ting a communication you have received from Honorable Mark O. Hatfield who is the incumbent Secretary of State and now Governor-elect of Oregon. The letter is as follows:

"The unofficial election returns and ab­stracts of votes for the candidates for the office of Governor of the State of Oregon at the general election held November 4, 1958, indicate that I received a majority of such votes.

"Anticipating that these results will be confirmed by the publication of the official returns, and it being my intention to accept such office, I hereby resign my office of Sec­retary of State of the State of Oregon ef­fective upon my qualification for the office of Governor of the State of Oregon.

"Dated at Salem, Oregon, this 8th day of January, 1959." (Emphasis supplied) You now request my further opinion and advice as to whether or not "this letter constitutes a valid resignation from the office of Secretary of State."

The letter of the incumbent Secretary of State expressly states that the resig­nation shall be "effective upon my quali­fication for the office of Governor of the State of Oregon." It is obvious from the quoted language that the resignation is conditioned upon a happening of a future event, namely, the qualification of the officer for the office of Governor of Ore­gon. Giving a very liberal construction to the language used in Article V, Sec. 3, Oregon Constitution, it is apparent that the incumbent Secretary of State cannot "qualify" for the office of Governor until he has legally relinquished the office he now holds.

The letter of Mr. Hatfield would not constitute a valid resignation because he has made the same effective only on terms which violate the plain require­ments of Article XV, Sec. 1, Oregon Consti­tution, as well as ORS 177.010.

Article XV, Sec. 1, reads as follows: "All officers, except members of the Legis­lative Assembly, shall hold their offices until their successors are elected, and qualified." (Emphasis supplied) ORS 177.010 provides:

"The Secretary of State shall, within 20 days after receiving notice of his election, and before entering upon the duties of his office, take and subscribe the oath required by the constitution, and give a bond, with sufficient sureties, to the State of Oregon, in the sum of $10,000, conditioned for the faithful discharge of the duties of his office as Secretary of State and as Auditor, and that he will deliver over to his successor in office, or to any other person authorized by law to receive the same, all moneys, books, records and all papers pertaining to his office. The bond shall be approved by the Governor and, together with the oath of office, shall be pre­served in the executive office." (Emphasis supplied) It is plain that the effect of the fore­going provisions is to require that Mr. Hatfield must remain as Secretary of State until he resigns unconditionally, his successor is appointed, takes the re­quired oath of office, posts the required bond approved by the Governor, and turns over to his successor all the moneys, books, records and papers per­taining to his office.

As was carefully pointed out in our opinion No. 4298,* dated December 31, 1958:

"* * * before the incumbent Secretary of State may constitutionally assume the of­fice of Governor three events must occur: (1) He must submit his resignation to the Governor; (2) a successor must be appointed, take the required oath of office and post the required bond; and (3) the outgoing Secretary of State must turn over to his successor all 'moneys, books, records and all papers per­taining to his office.' ORS 177.010, supra."

Reference is made once again to the further language in that opinion:

"Where the resignation and relinquishment of the duties of one lucrative office, in the case before us the office of Secretary of State, is a condition precedent to the acceptance and assumption of the duties of another lucrative office, office of Governor, and the further fact that your tenure in office of Governor does not expire until your successor is 'qualified', Article XV, Sec. 1, Oregon Consti­tution, it is obvious that the office of Secre­tary of State must become vacant before the expiration of your term of office."

Where there are constitutional and statutory provisions for resignation the effect of the resignation is controlled thereby. Poland et al. v. Glover, 111 F. Supp. 675.

Until such time as the incumbent Sec­retary of State submits an unconditional and unqualified resignation, as required by Article V, Sec. 3, his successor is ap­pointed, takes the oath and posts the re­quired bond, and the incumbent turns over to his successor "all moneys, books, records and all papers pertaining to his office," said incumbent remains as Sec­retary of State and you remain as Gov­ernor of Oregon under the provisions of Article XV, Sec. 1, Oregon Constitution, supra.

In order to comply with the Constitu­tion and laws of Oregon, Mr. Hatfield's resignation should state substantially as follows:

"I hereby resign my office as Secretary of State effective upon qualification of my successor and delivery to him by me of all moneys, books, records and papers of my office."

A proposal to resign on a specified condition cannot be accented save on the terms made by it. Poland et al. v. Glover, supra; 67 C.J.S., Officers, p. 227, citing State v. Huff, 172 Ind. 1, 87 N.E. 141; State v. Holm, 202 Minn. 500, 279 N.W. 218, 220. The specific terms of the resignation would require you to ignore not only the above mentioned constitu­tional provisions but also the clear language of ORS 177.010.

In view of the constitutional duty imposed upon you under Article V, Sec. 10, that you "shall take care that the Laws be faithfully executed," I am of the opin­ion that you have no authority to accept the proposed conditional resignation.

ROBERT Y. THORNTON

Attorney General

NOTE: Opinion No. 4298 overruled by Oregon Supreme Court in case entitled: State ex rel. O'Hara v. Appling, 215 Or. 303.

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