489 P.2d 1148 | Or. | 1971
Lead Opinion
This is an original proceeding in mandamus. We issued an alternative writ requiring defendant to show cause why he should not accept plaintiff’s filing of candidacy for a seat in the House of Eepresentatives of the Oregon Legislative Assembly.
Defendant’s refusal to accept the filing is based upon the ground that single member electoral units were established by defendant pursuant to our decision in Hovet v. Myers, 260 Or 152, 489 P2d 684 (Sept. 30, 1971), and that petitioner is not an inhabitant of the electoral unit which he sought to represent.
The inhabitancy requirement for Senators and Eepresentatives in the Oregon Legislative Assembly is contained in Art. IV, § 8, Oregon Constitution, which reads as follows:
“No person shall be a Senator, or Eepresentative who at the time of his election is not a citizen of the United States; nor anyone who has not been for one year, next preceeding (sic) his election an inhabitant of the county, or district whence he may be chosen. * * *”
When this provision of the constitution was adopted a legislative district could be no smaller than a county. However, a district could be comprised of more than one county. Thus residency in the county was required in the case of a single county district, whereas residency in any county in the district was permissible in multi-county districts.
It seems clear that the purpose of Section 8 was
The requirement that the legislator be “an inhabitant of the county, or district whence he may be chosen” is susceptible to two possible interpretations where subdistricts are created within the district: (1) a literal interpretation accepting the words “county” and “district” as the controlling language, thus permitting a legislator to represent the people in a sub-district if he is a resident in any part of the county or district, and (2) an interpretation based upon the assumption that Section 8, although cast in terms of a residency requirement related to county or district, was in fact an expression of a more fundamental principle that regardless of the name given to the electoral unit involved, whether a county, a larger district, or a smaller district, the person representing the unit must be an inhabitant of it.
We regard the latter interpretation as the more reasonable. At the time of the adoption of Art. IV, § 8, there was no electoral unit smaller than a county. Had there been such smaller units we can think of no compelling reason for excluding the application of the residence requirement to the smaller unit. It is true that the other interpretation would provide a larger reservoir of candidates, some of whom might be more capable than candidates within the subdistrict. But against this is the consideration that a legislator best represents his constituency when he lives among them, has knowledge of their problems and is more readily available to those he represents. We think that the latter considerations prompted the adoption of Art. IV, § 8.
Taking the language of Section 8 literally, a legislator representing a subdistrict could be held to satisfy the residency requirement by living in the county which embraces the subdistrict, although not in the subdistrict itself. If, however, Section 8 is read as expressing a basic principle of representation that a legislator live among those he represents, regardless of the size of his constituency, then application of Section 8 would not be modified by the amendment to Section 7 permitting subdistricts.
But for one consideration which we shall mention later, the amendment to Section 7 permitting subdistricts does not reflect on the people’s concern with residency requirements for legislators representing subdistriets. There was, at the time of the adoption of the amendment, ample reason for permitting the Legislature to divide a county into smaller elec
We postponed above a possible consideration which arguably indicates that the amendment of Section 7 was nonetheless intended to deal with the residency requirement. It has been suggested that the term “subdistrict” has meaning only in relation to the residency requirement; that if Art. IV, § 7 was intended not only to permit a division of a county or district, but also thereby to require residency in the subdivision, the drafters would have simply provided that a county may be divided into two or more districts. The term “subdistrict” was used in Section 7, it is said, to contrast with the term “district” in Art. IV, § 8, and to allow residence in the district but outside the subdistrict thereunder.
We think it is equally plausible to assume that the term “subdistrict” was used in Section 7 simply to describe the subdivision of the district into smaller areas without reference to the residency problem. In view of the common, if not universal practice of male
From the foregoing it is clear that the use of the
We hold that Art. IV, § 8 requires a legislator to be an inhabitant of the electoral unit “whence he may be chosen.” Therefore, the alternative writ of mandamus is dismissed.
Art. IV, § 7, in its entirety, reads as follows:
An examination of the legislative history of Oregon legislation in which subdistricting is involved indicates that the requirement of residency within the subdistrict was favoréd but that it was not included in the bills because of the fear that such a requirement for subdistrict representation might violate Art. IV, § 8. The 1951-53 Reapportionment Interim Committee Report recommended that the 1953 Legislature create electoral subdistricts by statute and impose a residency requirement on them. 1953 S.B. 40 followed both recommendations and was approved in its entirety by the Senate Committee on Elections and Privileges. Before the bill was reported back to the Senate, however, an emergency meeting of the committee struck the residency requirement from it. Exhibits for the 1955 Senate Committee on State and Federal Affairs imply that the sudden deletion was due solely to a letter, dated the day of the emergency meeting, from the Attorney General to the 1953 committee chairman, expressing the opinion that the residency requirement contravened Article IV, § 8. Sub-district residency requirements were proposed and favorably discussed in the 1953 House Committee on Elections and Reapportionment during consideration of 4953 H.J.R. 20', which embodied the 1954 subdistrict-creating amendments to Article IV, §§ 3 and 7, and in the 1955 Senate Committee on State and Federal Affairs, during consideration of 1955 S.B. 6 (now ORS 171.043), which demarcated subdistricts in Multnomah County. Each time, however, the proposals died when committee members asserted that Article IV, § 8 required residence only within the district or county and forbade a narrower statutory requirement.
Art. IV, § 3 also refers to “subdistricts,” but there is nothing in that section which relates in any way to the residency requirement.
Dissenting Opinion
dissenting.
I do not believe it is necessary to resort to legal or resourceful reasoning to interpret language as clear and unambiguous as that appearing in Art. IV, § 8 of the Oregon Constitution, which reads:
“No person shall be a Senator, or Representative who at the time of his election * * * has not been for one year next preceeding (sic) his election an inhabitant of the county, or district whence he may be chosen * * (Emphasis supplied.)
This language was devised in the Constitutional Convention of 1857 and became effective as a part of the original constitution when the State of Oregon was admitted into the Union on February 14, 1859. The county has always been regarded as a significant part, or concept, of this state’s form of government, and if the framers of the Oregon Constitution intended that a Senator or Representative live exclusively in the district from whence he may be chosen, there was no reason to provide that the legislator live in the “county, or district.” They would have merely provided that the Senator or Representative must be an inhabitant of the district.
“* * * It is to be presumed that the language [of the constitution] -which has been employed is sufficiently precise to convey the intent of the framers of the instrument. To find the thought a given section expresses, the first resort in all cases is to the natural signification of the words used in the order of the grammatical arrangement in which they have been placed. If thus regarded the words embody a definite meaning, involving no absurdity and no contradiction between different parts of the section construed and that meaning apparent on its face is the very one we are at liberty to say was intended to be conveyed. In such a case, there is no room for construction. Where one meaning is plainly declared in the instrument, the courts are not at liberty to search elsewhere for possible or even probable meanings. Schubel v. Olcott, 60 Or 503, 512, 120 P 375; 1 Cooley’s Constitutional Limitations (8th ed) p 124; 16 CJS 81, Constitutional Law § 19.” 211 Or at 366.
While it is not decisive in this case, it can be argued that there is no inherent wrong in allowing the people a wider choice from which to choose their representatives in the State Legislature by selecting them from any place in the county rather than within a limited district. It might also be desirable that a legislator reside specifically in the smaller district and thereby become better acquainted with his constituents. However, this is a decision for the people to make now that this court has, in Hovet v. Myers,
For this reason, I would grant the alternative writ of mandamus as applied for.