State ex rel. Boe v. Straub

• Decision Date: 23 May 1978
• Citation: 578 P.2d 1247,282 Or. 387
• Parties: STATE of Oregon ex rel. Jason BOE, Victor Atiyeh, Lenn L. Hannon, Fred W. Heard, Kenneth Jernstedt, Anthony Meeker, E. D. Potts, John Powell and Blaine Whipple, Plaintiffs-Relators, v. Robert W. STRAUB, Governor of the State of Oregon, Defendant.
• Court: Oregon Supreme Court

Page 1247

578 P.2d 1247

282 Or. 387

STATE of Oregon ex rel. Jason BOE, Victor Atiyeh, Lenn L Hannon, Fred W. Heard, Kenneth Jernstedt, Anthony Meeker, E. D. Potts, John Powell and Blaine Whipple, Plaintiffs-Relators, v. Robert W. STRAUB, Governor of the State of Oregon, Defendant.

Supreme Court of Oregon,In Banc.

Argued and Submitted May 5, 1978.

Decided May 23, 1978.

M. Chapin Milbank, of Schlegel, Milbank, Wheeler, Jarman & Hilgemann, Salem, argued the cause and filed the brief for plaintiffs-relators.

Arden E. Shenker, of Tooze, Kerr, Peterson, Marshall & Shenker, Portland, argued the cause for defendant. With him on the briefs was Roger K. Stroup, Portland.

Charles N. Hilke, of Marion-Polk Legal Aid Service, Salem, Kent B. Thurber, of Oregon Legal Services, Portland, Robert B. Gillan, of National Senior Citizens Law Center, Los Angeles, Cal., and Edward Gaffney, of Center for Constitutional Studies, Notre Dame, Ind., filed the brief amicus curiae on behalf of Oregon State Council for Senior Citizens.

DENECKE, Chief Justice.

Nine members of the Oregon Senate brought this original proceeding as plaintiffs in the Supreme Court against the Governor of Oregon as defendant. The Senators ask this court to order the Governor to appoint a person to the Board of Examiners of Nursing Home Administrators, subject to confirmation by the Senate Committee on Executive Appointments pursuant to ORS 678.800(5). The Governor appointed a person to the Board who was not confirmed by the Senate committee and this person took the oath of office as a member of the Board. The Governor contends the statute requiring his appointment to be confirmed by the Senate committee is in violation of the Oregon Constitution, primarily Art. III, § 1, and, therefore, of no effect.

The issue is one of public importance. For this reason we permitted the proceeding to be started in this court rather than in a trial court as is the customary procedure. After considering briefs and oral argument by counsel, however, we are convinced that because of clear commands of the legislature, as expressed in the statutes it enacted, we cannot decide the issue in this proceeding.

The plaintiffs started this proceeding by petitioning this court to issue a writ of mandamus to the Governor. A writ of mandamus is an order "to compel the performance of an act which the law specially enjoins, as a duty resulting from an office, trust or station." ORS 34.110. The person named as defendant is the person to be ordered to act. Because of its nature mandamus is an extraordinary remedy. The legislature recognized this and provided: "The writ (mandamus) shall not be issued in any case where there is a plain, speedy and adequate remedy in the ordinary course of law." ORS 34.110.

There is a "plain, speedy and adequate remedy in the ordinary course of the law" for plaintiffs in this case. The legislature has provided:

"An action at law may be maintained in the name of the state, upon the information of the district attorney, or upon the relation of a private party against the person offending, in the following cases:

"(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; * * *." ORS 30.510. ¹

The legislature has made this procedure "an action at law." The plaintiffs do not deny that a member of the Board of Examiners of Nursing Home Administrators is holding a "public office."

As stated, the specific request of plaintiffs is that we order the Governor to appoint a person to the Board who is confirmed by the Senate committee. That request assumes the Governor's appointee is unlawfully holding office, otherwise there is no vacancy. The crux of the case, therefore, is whether the Governor's appointee lawfully or unlawfully holds the office. That is precisely the controversy which the proceeding provided for in ORS 30.510 is designed to determine.

Plaintiffs also orally argued that the statutory remedy was not available because it can only be brought either by the district attorney or a private person who claims to be lawfully entitled to the office in dispute. ORS 30.510 does not so state. It provides that the action may be brought "upon the relation of a private party * * *." We have never before considered the argument that the private person must be entitled to the office in dispute because it has never been raised. However, we have heard and decided cases under this statute brought by parties who were not claiming to be entitled to the office. See, for example, Bennett Trust Co. v. Sengstacken, 58 Or. 333, 113 P. 863 (1911); State ex rel. Madden v. Crawford, 207 Or. 76, 295 P.2d 174 (1956).

The plaintiffs contend the remedy under the statute above quoted is inadequate because it is not speedy. Under the statute they argue that they would have to start in the circuit court, the loser would have to appeal to the Oregon Court of Appeals, and then eventually to this court. Assuming this procedure does not constitute a "speedy" remedy, plaintiffs' argument is nevertheless incorrect.

Art. VII, § 2, of the amended Judicial Department Article of the Oregon Constitution provides: "But the supreme court may, in its own discretion, take original jurisdiction in mandamus, quo warranto and habeas corpus proceedings." The statute above quoted, ORS 30.510, "is the statutory equivalent of the common-law writ of quo warranto, and an action commenced under it is generally referred to as a...