Capital journal. (Salem, Or.) 1919-1980, 1919-11-03
OLCOTT TO SERVE
UNEXP|RED Term
OF W|THyCONBE

There is no occasion for the election
of n governor of Oregon at the gem
eral election to be held in 1920 IN the
opinion Of Attorney General Brown
expressed today in reply to recent
request from Sam A. Kozer, deputy
secretary of state as to whether the
office of governor should be included
on the ballots for primary election
next May.
Ben w. Olcott, the opinion declares,
is a real, de iure governor serving odt
the unexpired term of the late GOV
ernor Withycombe. The secretary OF
state as a ministerial officer, he ee-
clares. and cannot question the correct
ness of a decision of the supreme court
in its Interpretation of the constitution
of the laws of the state, which, ne
holds was clearly defined, so far as the
status of the governorship is concern
ed, in the case of Chadwick VS.. Ear
hart and still continues to stand as the
law of the state inasmuch as 1t has not
vet ben overruled by a later decision
Of the same court.
II. however, the correctness of this
Interpretation, is questioned the at
torney general cites as remedy LOT
the cituation a proceeding IN man
damus which may be instituted by any
citizen and voter of the state in an
effort to compel the secretary of state
to file the nominating petition OF any
one who may aspire to become can
didate for governor at this time.
"An election in order to valid must
be held in pursuance to some provision
of law authorizing it," the opinion OF
Attorney General Brown reads. "Sec'
ton seven, article five of the constl'
tuition of Oregon provides that the
term of the office of governor OF ore
gon shall lbe four years. We have beer
taught by the supreme court of Oregon
that in the event of vacancy in thu
office of governor that the office shal
devolve upon the secretary of state
who shall continue to perform the du
ties of the office of governor for th'
remainder of the term of the OUTGOING
governor"
This advise, the attorney genera
states, as was his opinion of March Il
last, addressed to Governor Olcott,
based upon the provisions of the con
stitution of Oregon and the exposition
of this particular section by the su
preme court of the state in the case 0
Chadwick VS.. Earhart in which it wa
judicially determined that in the even
of the removal of the governor fror
office or of his death, resignation, o
inability to discharge the duties of tn
office, the same shall devolve on tn
secretary of state 'who shall continu
to perform the duties of the office
governor for the remainder of the teri
of the outgoing governor"
"That determination by the commo
wealth's highest court is binding upo
you as ministerial officer of TIL
state " the opinion continues "It
likewise binding upon the writer
this opinion. 1t can only be disrt
garded or overturned by the suprem
court of the state that gave utterant
to this construction of the constitutio
or by the people themselves who al
the source of all power.
''The secretary of state is ministe
iaI officer and he cannot question tt
correctness Of a decision of the 81
preme court in its Interpretation of IL
constitution of the state.
"When the highest court of the sta
has said that the duties of the go
ernor's office devolve upon the seer
tary of state, who continues to perfor
such duties for the remainder of Il
term of the outgoing governor it mea
exactly what it says. Your office, b
ing a ministerial office, your powe
are limited to those expressly grant
by law or necessarily implied ther
from, and you are compelled to pc
form the duties of your office as d
clared by law whether the same
statutory law or court made law.
.'It is not within the scope OF t
duties of ministerial officer to pa
upon the validity of a law requiri
his action. He has but one duty
such case and that is obedience"
Quoting from the illuminating b
divergent opinions prepared by the
tices of the supreme court in the ca
of Olcott vs. Hoff, a proceed
brought in the hope that the questi
that you are now asking, might be s.
tied" Brown declares:
"One thing, however, that case
settle, is that Governor Olcott Is a re
de jure governor and in exercising
duties as such, he is an actual gt
ernor and not an acting governor; Il
the obligations being executed by
state are and must be settled by h
as governor in fact, as well as secret;
of state in fact.
Referring to these same "diyerg
opinions, of the supreme court in
Olcott- Hoff case, the attorney gene
declares sit will be seen II
the authority of the Chadwick-Ea
"Catarrh OF Stomach ca
M A