State ex rel. Stadter v. Patterson

• Decision Date: 11 December 1952
• Citation: 251 P.2d 123,197 Or. 1
• Parties: STATE ex rel. STADTER v. PATTERSON.
• Court: Oregon Supreme Court

Page 123

251 P.2d 123

197 Or. 1

STATE ex rel. STADTER v. PATTERSON.

Supreme Court of Oregon.

Argued Dec. 9, 1952.

Decided Dec. 11, 1952.

Edward O. Stadter, Jr., Dist. Atty. for Marion County, of Salem, argued the cause and filed a brief for plaintiff.

Wilber Henderson and Robert F. Maguire, of Portland, argued the cause for defendant. With them on the brief were George Neuner, Atty. Gen., and Lawrence T. Harris, of Eugene.

Lamar Tooze, of Portland, at request of Earl T. Newbry, Secretary of State, argued the cause and filed a brief as amicus curiae.

Before BRAND, C. J., and HAY, LATOURETTE, WARNER and TOOZE, JJ.

BRAND, Chief Justice.

On December 6, 1952 there was filed with the clerk of this court a complaint and information in the nature of quo warranto. The proceeding was brought in the name of the State of Oregon on the relation of Edward O. Stadter, Jr., District Attorney of Marion County. The plaintiff asks this court to take original jurisdiction of the cause and thereafter to issue an order directing the defendant Paul L. Patterson to appear and show cause why judgment should not be rendered against him that he is guilty of usurping, intruding into and unlawfully holding and exercising the office and functions of the governor of the State of Oregon. Plaintiff prays that judgment be rendered against the defendant declaring that he is guilty of such usurpation and that he be ousted from the office. Thereafter and on the same day the matter was presented in open court. The defendant appeared by his counsel and joined in the request that we take original jurisdiction. The Honorable Earl Newbry, Secretary of State, was represented by counsel who asked permission to file a brief as amicus curiae in support of the defendant Patterson. After hearing counsel for the parties the court took the application under advisement and thereafter made an order approving the filing of the complaint and assuming original jurisdiction of the cause. The requested show cause order was made and the Secretary of State was authorized to file a brief. With consent of all parties the case was set for hearing upon the merits on December 9 at 10 O'clock a. m. The defendant appeared and filed an answer on December 6. Thereafter and on the same day the plaintiff filed a motion for judgment on the pleadings 'for the reason * * * that there are no issues of fact, and the only matter for consideration is the correctness of the legal conclusions drawn by the respective parties * * *.' The cause is now submitted for decision upon the arguments and briefs of the parties and the brief of amicus curiae. The facts being admitted, we will recite them in narrative form:

'On or about the 7th day of November 1950, Douglas McKay was elected by the people of the State of Oregon Governor of the State for a four year term; he qualified and took office as governor on or about the 9th day of January, 1951; his term of office commenced on said date and would end on or about the 10th day of January 1955.

'The defendant, Paul L. Patterson, was duly elected, qualified and became a member of the senate of the legislative assembly of the state for the 11th Senatorial District, for Washington County, on the 9th day of November, 1948, and his said term of office expired on the 4th day of November, 1952, except as it may have been continued by the adoption of the amendment to Section 4, Article IV, adopted by the people in the general election held November 4, 1952 and proclaimed by the Governor on December 1, 1952. On the 4th day of November, 1952, he was elected for a four year term as such senator to succeed himself.'

On the convening of the 46th legislative assembly of Oregon the defendant was elected to and qualified as president of the senate of said assembly. Said assembly adjourned sine die May 3, 1951.

'On the 6th day of December, 1952, said Douglas McKay left and absented himself from the State of Oregon, and at all times since has been and now is absent from and is without the boundaries of said state.'

On December 6, 1952 and ever since said date the defendant:

'* * * has claimed and asserted that, due to the absence from the state of Douglas McKay, its duly elected, qualified and acting governor, he, the defendant, as president of the senate of the legislative assembly of Oregon, and under and by virtue of the provisions of Section 8, Article V of the Constitution of said state, has been and is the duly constituted successor of the said Douglas McKay to the governorship of the state of Oregon and has been and is acting in such capacity as governor, and that he will continue to be governor and will so exercise the functions of that office and be in possession of books, files, documents and other property pertaining to said office until the return of the said Douglas McKay to the state of Oregon.'

The legal contentions of the parties are set forth in the pleadings. The plaintiff alleges that the 46th legislative assembly became 'functus officio' on May 3, 1951 and that by reason of the adjournment of said legislative assembly on said day the office of the president of the senate became vacant and 'there is no 46th legislative assembly and there is no president of it.' Plaintiff alleges that:

'The term of office of the said Paul L. Patterson as a member of the senate of the legislative assembly of the State of Oregon expired on November 4, 1952, and since said date he has not been a member of the 46th legislative assembly of the state, and is not and cannot be or continue in office as president of the senate of said 46th legislative assembly.'

Plaintiff contends as a second ditch argument that if the adjournment of May 3, 1951 did not end the existence of that body and thereby terminate incumbency of the defendant as president of the senate, then the 46th assembly came to an end on November 4, 1952, the date of the general election of senators and representatives, with a similar result. Plaintiff contends that if there is a presently existing legislative assembly it is the 47th and not the 46th and that the defendant has never been elected president of the senate of said assembly.

A fourth contention of plaintiff is that since November 4, 1952 there has been no president of the senate. The defendant, while admitting that he has never been elected president of the 47th legislative assembly, contends that the 46th assembly does now exist and is the legislative assembly of the State of Oregon, that the 47th assembly will not come into existence until the first Monday of January 1953 and that he will continue to be the president of the senate until said last-named date. In the alternative he contends that he is and will continue to be the president of the senate until the second Monday of January 1953, and as a third alternative he contends that he is and will be president of the senate until his successor shall have been elected and qualified or that he will so continue as president until January 5, 1953.

At the general election in November 1948 the defendant Patterson was elected to the senate for a four-year term and on November 4, 1952 he was reelected to the same office. On or about the eighth day of January 1951 he was elected president of the senate. The Constitution of Oregon provides:

'In case of the removal from office of the governor, or of his death, resignation, absence from the state or other inability to discharge the duties of the office, the president of the senate, or if there be none, or in case of his removal from office, death, resignation, absence from the state, or other disability, then the speaker of the house of representatives, or if there be none, or in case of his removal from office, death, resignation, absence from the state, or other disability, then the secretary of state, or if there be none, or in case of his removal from office, death, resignation, absence from the state, or other disability, then the state treasurer, shall become governor until the disability be removed, or a governor be elected at the next general biennial election. The governor elected to fill the vacancy shall hold office for the unexpired term of the outgoing governor.' Const. Art. V, sec. 8, as amended in November, 1946. See Oregon Laws 1947, p. 5.

If the defendant Patterson was president of the senate when on December 6, 1952 Governor McKay left the state, then by the same token, the defendant at that moment became governor during the absence of Governor McKay.

The plaintiff asserts in substance that there can be no president of the senate unless there is a senate, that the senate comprises, with the house, the legislative assembly, and that the legislative assembly ceased to exist when it adjourned sine die. Therefore it is said there ceased to be a president of the senate after the adjournment on May 3, 1951. State ex rel. Sullivan v. Dammann, 221 Wis. 551, 267 N.W. 433, 437, is cited in support. The Wisconsin Constitution provided:

'* * * If any bill shall not be returned by the governor within six days (Sundays excepted) after it shall have been presented to him, the same shall be a law unless the legislature shall, by their adjournment, prevent its return, in which case it shall not be a law.' Const. Art. 5, § 10.

The only question decided in the Dammann case was whether the word 'adjournment' meant sine die adjournment or a temporary adjournment occurring during a session. The court very properly held that adjournment sine die was meant. Having decided the question the court said, 'When a Legislature adjourns sine die, it ceases to exist, and consequently, has no further opportunity to exercise its constitutional right to reconsider a bill disapproved by the Governor * * *.' The statement that the legislature 'CEASES TO EXIST' WAS UNNECESSARY TO the decision. it would have been sufficient to hold that the legislative session ceased to exist, with the obvious result noted by the court, i. e., that the...