State ex rel. Musa v. Minear
| Decision Date | 21 April 1965 |
| Citation | 401 P.2d 36,240 Or. 315 |
| Parties | STATE of Oregon ex rel. Ben MUSA, Plaintiff, v. Leon P. MINEAR, Defendant. |
| Court | Oregon Supreme Court |
William B. Murray, Portland, argued the cause for plaintiff. With him on the brief were Thomas R. Mahoney, Portland, and Gary D. Gortmaker, Dist. Atty., Salem.
Cecil H. Quesseth, Salem, and Raymond P. Underwood, Portland, argued the cause for defendant. With them on the brief was Ridgway K. Foley, Jr., Portland.
Before McALLISTER, C. J., and PERRY, SLOAN, O'CONNELL, GOODWIN, DENECKE and HOLMAN, JJ.
The relator brings this proceeding in the nature of quo warranto to challenge the right of Leon P. Minear to hold office as superintendent of public instruction.
The case presents two questions: (1) Is ORS 326.005(1) (Oregon Laws 1961, ch. 624, § 1), under the provisions of which the superintendent holds office, constitutional? (2) If not, does it necessarily follow that the incumbent must vacate the office?
The answer to both questions is 'no.'
Oregon Constitution, Art. VIII, § 1, 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.'
ORS 326.005(1) provides:
'The State Board of Education shall elect the Superintendent of Public Instruction who shall be the executive head of the State Department of Education and administrative officer of the State Board of Education; provided, the person elected shall have been a resident of Oregon for the five years immediately preceding the date of election.'
The predominant theme of the Constitutional Convention of 1857 was economy in government. In earlier years the people of the territory had rejected statehood in part because they considered it thrifty to permit the federal government to provide governmental services. In the formation of the state, frugality prevailed.
The framers of the constitution rejected proposals to create the offices of lieutenant governor and attorney general. The governor was required to perform double duty as governor and superintendent of schools. The secretary of State was required to serve as auditor. The judges of the supreme court were required to serve as trial judges. Other economies, particularly in the matter of salaries, were written into the constitution in order to make it acceptable to the voters. See Carey, The Oregon Constitution (1925), at page 56.
Foreseeing the time when the duties of governor and the responsibilities connected with the management of the public schools might unduly tax the energies of schools the framers of the constitution made provision for the Legislative Assembly to relieve the governor of his educational duties at any time after five years from the adoption of the constitution.
The controlling constitutional question in the case at bar is whether, by employing the language found in Article VIII, § 1, the framers intended that the eventual superintendent of public instruction be an elected or an appointed officer.
The relator argues that the words 'to provide by law for the election of a superintendent' mean an election by the voters of the state. The Superintendent argues that the words mean that the Assembly could, if it saw fit, provide by law for the executive appointment of the superintendent. It was not mandatory that the Assembly ever provide for a separate office. The issue is whether the Assembly was free to make the office appointive rather than elective, if it saw fit to create the office at all.
The superintendent points out that elsewhere in the constitution when the framers spoke of the election of a governor, a secretary of state, or a printer, they employed such words as 'by the qualified electors of the State.' Article V, § 4; Art. VI, § 1; Art. XII, § 1 (original). In connection with senators and representatives, the constitution says, 'chosen by the electors of the respective counties, or districts * * *.' Article IV, § 3 (original). The superintendent argues that if the framers had intended, with reference to the superintendent, that he be elected by the electors of the state they would have said so. The answer to this proposition, however, lies not in the realm of semantics or in rules for construing statutes of doubtful meaning, but rather in the constitution itself and in the proceedings which produced the document.
Before adopting the proposal that for at least five years the governor must serve as superintendent of public instruction, the convention had before it an alternative proposal that the secretary of state should serve as superintendent for a like period of time. In both cases, the framers had already spelled out in detail their desire to have the governor and the secretary of state elected by the 'qualified electors of the State.' Article V, § 4; Art. VI, § 1. It may have seemed to the framers redundant to include in a section conferring educational duties upon an elected governor additional words stating that his elected successor, when the Assembly should decide that one was needed, also must be elected 'by the qualified electors of the State.'
If there were any doubt that the framers meant an elected official to be elected by the people rather than by a committee representing the executive, the doubt is resolved by the character of the Constitution of 1857 and the convention that created it. All state officers, including the state printer, were made elective. See Article XII, § 1 (original). The only appointments contemplated were to fill vacancies between elections. Article V, § 16 (original) provides:
'When during a recess of the Legislative Assembly a vacancy shall happen in any office, the appointment to which is vested in the Legislative Assembly; or when, at any time, a vacancy shall have occurred in any other State Office, or in the office of judge of any Court, the Governor shall fill such vacancy by appointment, which shall expire when a successor shall have been elected, and qualified.'
The superintendent argues that the appointment of a professional person by the state board of education pursuant to ORS 326.005 is a more desirable method of selecting a superintendent than that of a popular vote. This argument may be sound from a political-science viewpoint. The Assembly in 1961 thought the policy was educationally sound. The policy argument, however, begs the constitutional question, which is the question...
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