State Ex Rel. Oregon Consumer League v. Zielinski , 60 Or. App. 654 ( 1982 )

THORNTON, J.

Plaintiffs brought this action in the nature of quo warranto seeking a determination whether defendant is holding her public office unlawfully and, if so, her exclusion from that office. The trial court entered an order granting defendant’s pretrial motion to dismiss and plaintiffs appealed. We reverse.

Defendant is a Marion County resident. She is a farmer, the wife of a farmer, past president of the Oregon Women for Agriculture and secretary to the Board of Directors of the Agri-Business Council of Oregon. In August, 1979, she was appointed by the Governor to be one of the two members of the State Board of Agriculture (Board) representing consumer interests and presently serves in that capacity. The nine-member Board establishes policy for the administration of the Department of Agriculture. ORS 561.140(2). The primary qualifications for membership are set out in ORS 561.130(2):

“The members shall be citizens of Oregon seven of whom are actively engaged in the production of agricultural commodities and two of whom are representative of consumer interests of the state.”

In November, 1980, plaintiffs filed this action, alleging that, because of defendant’s agricultural ties, she is not “representative of consumer interest^]” and, therefore, is holding public office unlawfully. Plaintiffs prayed for a judgment incorporating a declaration to that effect and requiring defendant to vacate her office. Defendant moved to dismiss the complaint on the following grounds: (1) lack of subject matter jurisdiction; (2) lack of a justiciable controversy; and (3) plaintiffs’ failure to state facts sufficient to constitute a claim. In its letter opinion, the trial court stated no specific grounds for the decision to allow the motion. Simply stated, the issue before us is whether, in light of the facts alleged in the complaint, plaintiffs may obtain relief through this proceeding.

The common law writ of quo warranto has been abolished in Oregon. ORS 34.810. In its place, the legislature has created an action at law, which generally codifies the common law of that writ. State ex rel Boe v. Straub, 282 Or 387, 390 n 1, 578 P2d 1247 (1978). Historically, quo warranto is an action at law that requires the occupant of a public office to show by what right or authority he or she holds that office; it is an action to try title to public office. State ex rel v. Stevens, 29 Or 464, 472, 44 P 898 (1896). ORS 30.510 provides, in pertinent part:

“An action at law may be maintained * * * upon the relation of a private party against the person offending, in the following cases:

“(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; * * *’¹ (Emphasis added.)

Plaintiffs contend that, because the legislature has chosen to prescribe minimum qualifications for appointees to the Board, a court may determine whether defendant meets those qualification and, thus, whether she “unlawfully holds * * * public office.” ORS 561.130(2) requires that a person appointed to defendant’s position on the Board be (1) a “citizen of Oregon,” and (2) “representative of consumer interests of the state.” Plaintiffs argue that the latter of these “minimum eligibility criteria” is “capable of definite application” in this case, where the governor, by appointing a person who is patently representative of tbe producers of agricultural commodities to a consumer position on the Board, went beyond the statutorily prescribed boundaries of the pool of qualified appointees.

Defendant answers that the statute does not define “representative of consumer interests of the state” or provide standards to apply in determining whether an appointee meets the qualification. Therefore, according to defendant, the statute provides only a “general statement of purpose designed to guide the governor in the exercise of his judgment as to whom he should appoint to fill the nine positions on the Board.” Defendant concludes that, although “[unquestionably * * * the governor is to strive to appoint someone capable and willing to represent the consumer interests,” except for the requirement that an appointee be a resident of Oregon, “[t]he legislature unequivocally has delegated to the governor the exclusive authority to otherwise decide the fitness of potential appointees.”

State ex rel Boe v. Straub, supra, and State ex rel Madden v. Crawford, 207 Or 76, 295 P2d 174 (1956), the two Oregon decisions cited by the parties, provide little guidance in resolving the question presented here. Although both cases involved the question whether a public official held office “unlawfully,” and both decisions affirmed that a proceeding under ORS 30.510 provides the exclusive remedy for such a purpose, neither involved a direct challenge to a public official’s qualifications or credentials to hold appointive office.²

We conclude that the standards set out in the statute (ORS 561.130(2)) are sufficiently definite to permit judicial inquiry into the validity of defendant’s appointment as one of the two consumer representatives on the State Board of Agriculture. Seven members of the Board must be “actively engaged in the production of agricultural commodities”; two members must be “representative of consumer interests of the state.”

Not only does ORS 561.130(2) inferentially declare that not more than seven members shall be actively engaged in farming, it provides expressly that the other two members shall be representative of consumer interests. That discloses a clear legislative intent that the agriculture members be engaged in farming and that the two consumer representatives not be engaged in farming.³

The dissenting opinion relies on State ex rel McIntyre v. McEachern, 231 Ala 609, 166 So 36 (1936), where the court held that the statutory terms “experienced road builder” and a “competent engineer” were too indefinite to permit judicial inquiry into the validity of the appointment. We have no quarrel with the rule involved in McIntyre and similar cases. But McIntyre is simply not in point here. The Alabama provision is completely distinguishable from the Oregon statute. The Alabama statute did not expressly or inferentially define the terms “experienced road builder” and “competent engineer,” nor did it fix the number and specifically define the qualifications of persons eligible to a board or commission, as does ORS 561.130(2).

Reversed and remanded.

1 ORS 30.560 provides that any person found guilty of usurping, intruding into, or unlawfully holding a public office shall be excluded from that office and may be fined up to $2000.

2 In State ex rel Madden v. Crawford, 207 Or 76, 295 P2d 174 (1956), the court considered the constitutionality of a statute authorizing the Supreme Court to appoint members of the circuit court bench to temporarily serve as Supreme Court justices. In State ex rel Boe v. Straub, 282 Or 387, 578 P2d 1247 (1978), the court held that, where the governor had failed to have an appointment confirmed by the senate as required by law, ORS 30.510 and not mandamus provided the appropriate means to challenge the appointment.

3 The rule or maxim “expressio unius est exclusio alterius, ’’ which arguably applies here, has been followed in a number of Oregon cases. See, e.g., Smith v. Clackamas County, 252 Or 230, 448 P2d 512 (1968), partially overruled on other grounds, Whipple v. Howser, 291 Or 475, 487, 632 P2d 782 (1981); Kruckman v. Smith et al, 126 Or 395, 270 P 474 (1928); Gantenbein v. PERB, 33 Or App 309, 576 P2d 1257, rev den 282 Or 537 (1978). The maxim is applied only as an aid in arriving at the legislature’s intent. Daly v. Horsefly Irrigation District, 143 Or 441, 21 P2d 787 (1933). Strictly speaking, however, the maxim would not appear to apply here because ORS 561.130(2) expressly provides that although seven members must be actively engaged in farming, the remaining two members shall be representatives of consumer interests. See Whipple v. Howser, supra, 291 Or at 487.