State ex rel. O'Hara v. Appling

• Court: Supreme Court of Oregon
• Writing for the Court: LUSK
• Citation: 215 Or. 303,334 P.2d 482
• Parties: STATE of Oregon, ex rel. David O'HARA on the information of Hattie Bratzel, District Attorney for Marion County, Oregon, and Robert Y. Thornton, Attorney General for Oregon, Plaintiff, v. Howell APPLING, Jr. and Mark O. Hatfield, Defendants.
• Decision Date: 21 January 1959

Page 482

334 P.2d 482 215 Or. 303 STATE of Oregon, ex rel. David O'HARA on the information of
Hattie Bratzel, District Attorney for Marion
County, Oregon, and Robert Y. Thornton,
Attorney General for Oregon, Plaintiff,
v.
Howell APPLING, Jr. and Mark O. Hatfield, Defendants. Supreme Court of Oregon, In Banc. Argued and Submitted Jan. 19, 1959.
Jan. 21, 1959.

Page 483

[215 Or. 304] Robert Y. Thornton, Atty. Gen., E. G. Foxley, Asst. Atty. Gen., and Hattie Bratzel, Dist. Atty., for Marion County, Salem, argued the cause for plaintiff. On the brief was Robert Y. Thornton, Atty. Gen.

Roy F. Shields and Lamar Tooze, Portland, argued the cause for defendants. With them on the brief was Lamar Tooze, Jr., Portland.

LUSK, Justice.

This is an original proceeding in quo warranto brought to determine who is entitled to hold the office of Secretary of State of the State of Oregon. We took [215 Or. 305] jurisdiction pursuant to Amended Art. VII, § 2, Constitution of Oregon, because of the public importance of the question and the necessity for its speedy final determination.

The case is before us on motion of the defendants for judgment on the pleadings. The complaint was filed by the state on the relation of David O'Hara on the information of Hattie Bratzel, District Attorney of Marion county, and Robert Y. Thornton, Attorney General of Oregon. The defendants

Page 484

are Howell Appling, Jr., who is charged with usurping the office of Secretary of State, and Mark O. Hatfield, who was elected Secretary of State on November 6, 1956 for a term of four years and while holding that office was elected Governor at the general election held November 4, 1958 and took the oath of office on January 12, 1959. Mr. Appling claims the office of Secretary of State under appointment by Governor Hatfield on January 12, 1959. Mr. O'Hara, the relator, claims it under appointment on January 7, 1959 by the Honorable Robert D. Holmes who was Governor at the time such alleged appointment was made. Mr. O'Hara's commission was transmitted by Governor Holmes to Secretary of State Hatfield the following day, but the latter refused to attest it. Both appointments are for the unexpired term of Mark O. Hatfield as Secretary of State.

Under date of January 8, 1959, Mr. Hatfield transmitted to Governor Holmes the following letter:

'Honorable Robert D. Holmes

'Governor of Oregon

'Salem, Oregon

'Dear Sir:

'The unofficial election returns and abstracts of votes for the candidates for the office of Governor [215 Or. 306] 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.

's/ Mark O. Hatfield'

On January 9, 1959, Governor Holmes wrote Mr. Hatfield as follows:

'January 9, 1959

'Honorable Mark O. Hatfield

'Secretary of State

'Capitol Building

'Dear Mr. Hatfield:

'This is to inform you that I have been advised by Honorable Robert Y. Thornton, Attorney General of the State of Oregon, in his opinion number 4308, dated January 9, 1959, that the letter you submitted to me dated January 8, 1959, does not comply with the requirements of the Constitution and statutes of our State and therefore is not a valid resignation; and that I have no authority to accept the document as your resignation.

'You are hereby advised that I am declining to accept your letter abovementioned as a resignation from the office of Secretary of State of the State of Oregon.

'Very truly yours,

'/s/ Robert D. Holmes

'Governor'

[215 Or. 307] On January 12, 1959, at 10:30 a. m., Mr. O'Hara took the oath of office as Secretary of State and filed a bond pursuant to the provisions of ORS 177.010 and at 10:35 a. m. of said day, Governor Holmes approved the bond.

On January 12, 1959, at about 2 o'clock p. m., the election of Mr. Hatfield to the office of Governor was officially published by the Speaker of the House of Representatives at a joint session of the senate and house of representatives of the 50th legislative assembly of Oregon pursuant to Art. V, § 4, Oregon Constitution; thereafter, at about 2:36 p. m. on said day, Mr. Hatfield took the oath of office as Governor; and at about 2:38 p. m. of said day, Mr. Hatfield issued a commission to Mr. Appling to be Secretary of State and thereafter, Mr. Appling took the oath of office and gave the required bond and took possession of the office.

Page 485

The foregoing facts, stated with somewhat more detail, all appear in the complaint.

The relief sought is not only that the court adjudge that Mr. Appling has usurped the office of Secretary of State, but also that it declare 'the respective rights and status of relator and each of the defendants [i. e. Hatfield as well as Appling] to the office of Secretary of State.'

The defendants filed an answer which admits all the controlling facts as above stated. Their motion for judgment on the pleadings therefore presents a question of law, to-wit, Did former Governor Holmes or present Governor Hatfield have the right under the constitution and statutes of Oregon to appoint a successor to Hatfield as Secretary of State? The answer depends on when, if at all, a vacancy arose in the office of Secretary of State.

[215 Or. 308] The plaintiff cites certain provisions of the Oregon Constitution and certain statutes as supporting its position. The constitutional provisions are as follows:

Article II, § 10:

'No person holding a lucrative office, or appointment under the United States, or under this State, shall be eligible to a seat in the Legislative Assembly; nor shall any person hold more than one lucrative office at the same time, except as in this Constitution expressly permitted * * *.'

Article II, § 11:

'No person who may hereafter be a collector, or holder of public moneys, shall be eligible to any office of trust or profit, until he shall have accounted for, and paid over according to law, all sums for which he may be liable.'

Article V, § 3:

'No member of Congress, or person holding any office under the United States, or under this State, or under any other power, shall fill the Office of Governor, except as may be otherwise provided in this Constitution.'

Article XV, § 1:

'All officers, except members of the Legislative Assembly, shall hold their offices until their successors are elected, and qualified.'

The statutes cited are the following:

'ORS 236.320. Resignation shall be made as follows:

'(1) By the Secretary of State * * * to the Governor.'

'ORS 177.010. Oath and bond. 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 [215 Or. 309] $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.'

The plaintiff argues that under Art. XV, § 1 of the Oregon Constitution, Mr. Hatfield continued to hold his office as Secretary of State at the time that he took the oath of office as Governor, because at that time his successor had not been appointed and qualified. Hence, the state says that he is holding more than one lucrative office at the same time in violation of Art. II, § 10, and is filling the office of Governor in violation of Art. V, § 3.

The defendants say, first, that Mr. Hatfield did resign the office of Secretary of State by his letter to Governor Holmes above quoted, and that his resignation became effective when he took the oath of office as Governor, and, second, that it was not necessary for him to resign in that manner because, under the doctrine of implied resignation, he ceased to be Secretary

Page 486

of State at the very instant that he took the oath of office as Governor.

The doctrine of implied resignation is thus stated in 100 A.L.R. 1170:

'* * * if the holding of two offices by the same person, at the same time, is inhibited by the Constitution or statute, a forbidden incompatibility is created similar in its effect to that of the common law, and, as in the case of the latter, it is well settled by an overwhelming array of authority that the acceptance of a second office of the kind prohibited [215 Or. 310] operates, ipso facto, to absolutely vacate the first office.'

The multitude of decisions from all over the United States and from England cited in the extensive annotation beginning at 100 A.L.R. 1162 fully bears out the foregoing statement that this doctrine has the support of 'an overwhelming array of authority.' It had the approval of a dictum in Holman v. Lutz, 132 Or. 185, 282 P. 241, 284 P. 825, and was one of the grounds of decision in State ex rel. Long v. Beveridge, 88 Or. 334, 337, 171 P. 1173. The basis of the doctrine is well stated in the frequently quoted language of the Supreme Court of Maine, in...