Can Oregon's Legislature repeal the elected office of state schools superintendent and make the Governor fill that role instead?

Plain-English summary

The Deputy Superintendent of Public Instruction asked an unusual question: could the Legislature do away with the elected office of State Superintendent and put the Governor back in that role? Article VIII, section 1 of the Oregon Constitution originally made the Governor the superintendent. Five years after statehood, the Legislature was authorized to "provide by law for the election of a superintendent." It did so in 1872, and the office has been elected ever since. A 1965 Oregon Supreme Court case (Musa v. Minear) held that once the Legislature exercised its option to make the office elected, the Legislature could not turn around and make it appointive by the State Board of Education.

Attorney General Hardy Myers concluded that the Legislature could nonetheless return the office to the Governor. The text of Article VIII, section 1 specifically permits a single person, the Governor, to hold both the gubernatorial office and the superintendent's office. That option was always available, and the Constitution's "shall be competent" language gives the Legislature continuing discretion to use or not use the option of creating a separately elected superintendent. The 1965 Musa decision didn't address that issue and didn't foreclose it. The constitutional concerns about dual lucrative offices (Article II, section 10) and additional qualifications (per Powers v. Welch) didn't apply, because Article VIII expressly contemplates the Governor doing both jobs.

Currency note

This opinion was issued in 1997. Subsequent statutory amendments, court decisions, or later AG opinions may have changed the analysis. Treat this page as historical context, not current legal advice. Verify current law before relying on any specific rule, deadline, or remedy mentioned here.

Common questions

Q: What did Musa v. Minear actually decide?
A: It held that the Legislature could not transfer the superintendent's selection to the State Board of Education (the Board was supposed to "elect" the superintendent under the proposed scheme). The court read Article VIII, section 1 to require selection through an election by the electors of the state, not by some other body. Returning the office to the popularly elected Governor doesn't run into the same problem; the Governor is selected by the same electors.

Q: Doesn't Article II, section 10 ban holding two lucrative offices?
A: Yes, except as the Constitution expressly permits. Article VIII, section 1 expressly permits the Governor to also serve as superintendent. The dual-office ban yields to that more specific authorization. As a backup argument, if one office had no compensation attached, it wouldn't be "lucrative," and combining could be fine on that ground too.

Q: What about adding qualifications to a constitutional office?
A: Powers v. Welch (1953) held that the Legislature can't add qualifications to a constitutional office whose qualifications the Constitution already specifies (like county surveyor). But the Constitution doesn't specify qualifications for the state superintendent, so the Legislature has more latitude. And restoring the office to the Governor isn't adding qualifications; it's exercising the original constitutional option.

Q: What about a 1987 attempt to do this?
A: The opinion notes that the 1987 Legislature passed SB 397 to repeal the elective office and restore the superintendent role to the Governor. Governor Goldschmidt vetoed it, partly on "doubtful constitutionality" grounds. The 1997 opinion supplied a more confident legal foundation for the same idea.

Q: Was this opinion ever acted on?
A: As of issuance, no. The opinion supplied the legal analysis but did not itself change the law. Whether and how Oregon later restructured the office is outside the scope of this opinion; verify current law before relying on any present-day arrangement.

Background and statutory framework

Article VIII, section 1 of the Oregon Constitution (unchanged since 1859) provides that the Governor shall be superintendent of public instruction, and that after five years it shall be "competent" for the Legislature to provide for the election of a superintendent. The Legislature first did so in 1872, separating the office from the Governor and prescribing duties and salary.

State ex rel Musa v. Minear (1965) restricted the Legislature's flexibility. The court held that if the office is separated from the Governor, it must remain an elected office; the Legislature can't transfer selection to the State Board. Bd. of Educ. v. Fasold (1968) read the Constitution to allow significant delegation to the Board of Education on educational matters, but didn't disturb Musa's selection rule.

The opinion's key move is to read "shall be competent" as a continuing legislative discretion. The Legislature can decide whether to use the option of a separately elected superintendent; that decision is not a one-way ratchet. Combined with the constitutional text expressly contemplating the Governor as superintendent, the Legislature has authority to return to the original arrangement.

Citations and references

Constitutional provisions and statutes:
- Article VIII, section 1; Article VIII, section 3; Article II, section 10, Oregon Constitution
- ORS 326.021, ORS 326.051, State Board of Education authority
- ORS 326.310, State Superintendent as administrative officer

Cases:
- State ex rel Musa v. Minear, 240 Or 315, 401 P2d 36 (1965), superintendent must be elected if separated from Governor
- Bd. of Educ. v. Fasold, 251 Or 274, 445 P2d 489 (1968), legislative authority over educational structure
- State ex rel. Powers v. Welch, 198 Or 670, 259 P2d 112 (1953), additional qualifications for constitutional office
- Stone v. Mississippi, 101 US 814 (1879), legislature can repeal prior laws
- Neher v. Chartier, 319 Or 417, 879 P2d 156 (1994), constitutional interpretation
- Holman v. Lutz, 132 Or 185, 282 P 241 (1929), uncompensated office not "lucrative"

Source

• Landing page: https://www.doj.state.or.us/oregon-department-of-justice/office-of-the-attorney-general/attorney-general-opinions/
• Original PDF: https://www.doj.state.or.us/wp-content/uploads/1997/05/op8248.pdf

Original opinion text

May 7, 1997

No. 8248
This opinion is in response to a question from C. Gregory McMurdo, Deputy Superintendent of Public Instruction,
concerning the office of State Superintendent of Public Instruction (state superintendent).
QUESTION PRESENTED
Does the Legislative Assembly have the constitutional authority to repeal existing statutes providing for the
election of the state superintendent and to provide instead that the Governor shall be the state
superintendent?
ANSWER GIVEN
The Legislative Assembly may repeal the statutes providing for the election of the state superintendent and provide that the
Governor shall be the state superintendent.(1)
DISCUSSION
We first discuss briefly the relevant constitutional and statutory provisions and certain attorney general opinions and court
cases that have discussed the office of the state superintendent and its function within the system of public education in
Oregon. Then, we address your specific question.
I. Background
The office of superintendent of schools has existed in Oregon since 1849 when the territorial legislature provided for a
system of county schools and for a territorial superintendent to be elected triennially. Statutes of Oregon, ch I-II (Common
Schools), at 66, 68 (Bush 1851). Two years later, the legislature abolished the position of territorial superintendent and
transferred certain fiscal duties to the county commissioners of each county. Id. at 76.
Reference to the office reappeared in the Oregon Constitution, which was approved by the people of Oregon in 1857 and
became effective on February 14, 1859. Article VIII of the Constitution is devoted to education and school lands. Section 1
states:
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 the 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. -Article VIII, section 1, has not been amended since the Oregon Constitution was approved by the people.
On its face, Article VIII, section 1, mandates the existence of a state superintendent and requires the Governor to act in this
capacity for at least five years. Thereafter, the legislature "shall be competent" to enact laws to provide for the election of a
superintendent. Section 1 is silent as to the superintendent's powers, but directs the legislature to prescribe them.
For the first 16 years of statehood, the Governor served as state superintendent. Then, in 1872 the legislature enacted "An
act to establish a uniform course of public instruction in the common schools of this state." General Laws of Oregon, ch IV
(Common Schools), §§ 1-14, at 502-13 (Deady and Lane 1872). Under this Act, the state superintendent was "hereby
detached from the office of governor," and "a distinct and separate office" was created. Id. § 1, at 502. The state
superintendent was to be elected initially by joint ballot of the Legislative Assembly(2) and then by election every four
years, beginning with the general election in 1874. The Act prescribed the state superintendent's duties in detail and
established his salary at $1500 per year. It also created a state board of education, consisting of the Governor, the Secretary
of State and the state superintendent, which was authorized, among other things, to prescribe a series of rules for the
general governance of public schools. Id. §§ 15, 17, at 504-505.
In 1941, the state board was enlarged by adding four appointed members to serve with the Governor, Secretary of State
and state superintendent. Or Laws 1941, ch 370. Currently, the state board consists of seven gubernatorially appointed
public members and has broad authority to establish rules and standards for Oregon public schools. ORS 326.021,
326.051. The state superintendent functions as the administrative officer of the state board and the executive head of the
Department of Education. ORS 326.310.
In State ex rel Musa v. Minear, 240 Or 315, 401 P2d 36 (1965), the Supreme Court of Oregon considered whether Article
VIII, section 1, rendered unconstitutional a statute that repealed laws requiring the popular election of the state
superintendent and provided that the state board of education would "elect" the superintendent. The issue, as defined by
the Court, was "whether the [Legislative] Assembly was free to make the office appointive rather than elective, if it saw fit
to create the office at all." Id. at 318. The court held that the statute was unconstitutional and concluded that Article VIII,
section 1, requires the state superintendent to be selected through an election by the electors of the state.(3)
We previously considered your question in a 1959 opinion when we were asked about the constitutionality of proposed
legislation providing that the Governor be superintendent of public instruction and repealing existing statutory provisions
for the election of a superintendent. 29 Op Atty Gen 161 (1959). We concluded that the phrase "shall be competent" to
provide for the election of a state superintendent as used in Article VIII, section 1, means that the legislature has the power
to decide whether the state superintendent shall be elected. We also acknowledged in our 1959 opinion that the legislature
has plenary authority to enact, amend or repeal laws except as clearly prohibited by the constitution, but we noted that
Article VIII, section 1,
is susceptible of being interpreted as imposing a mandatory duty upon the Legislative Assembly to continue
the office of Superintendent of Public Instruction as an elective office. * * *
Article VIII, § 1, Oregon Constitution, does provide for the election of the office of Superintendent of
Public Instruction, which would apparently result in the creation of a "constitutional office," which the
legislature cannot abolish * * . Under this construction the first portion of [Article VIII, section 1,
providing for the governor to serve as state superintendent] would have served its purpose and will not be
revived by a repeal of provisions relating to the elective office.
Id. at 163. We finally concluded that the issue was a close one and expressed no opinion on whether a law to reestablish
the governor as the state superintendent would be constitutional.(4)
With this background in mind, we turn to your question.
II. Authority to Repeal Laws for the Election of the State Superintendent
The primary issue raised by your question is whether the legislature may constitutionally repeal laws providing for the
election of the state superintendent and provide that the Governor shall be superintendent. We begin with the established
principle that the legislature has absolute power to enact laws as it deems fit, except as prohibited by the Constitution of
Oregon or by the constitution or laws of the United States. Bd. of Educ. v. Fasold, 251 Or 274, 279, 445 P2d 489 (1968);
State ex rel Overhulse v. Appling, 226 Or 575, 585, 361 P2d 86 (1961); 43 Op Atty Gen 17, 84-5 (1982).
The legislature's power to enact laws necessarily includes the power to modify or repeal prior laws. 1A Sutherland
Statutory Construction § 23.03 (5th ed 1992). As a general matter, the legislature may not prohibit itself or a future
legislature from modifying or repealing existing laws. Stone v. Mississippi, 101 US 814, 817, 25 L Ed 1079 (1879).
Hence, we conclude that the legislature has the authority to repeal statutes calling for an elected state superintendent unless
there is a clearly expressed limit under Article VIII, section 1, or another part of the Oregon Constitution.
In interpreting a provision of the Oregon Constitution, we consider the specific wording of the provision, the case law
surrounding it and the historical circumstances that led to its creation. Neher v. Chartier, 319 Or 417, 422, 879 P2d 156
(1994). The text of Article VIII, section 1, provides that anytime after five years from the adoption of the Constitution,
it shall be competent for the Legislative Assembly to provide by law for the election of a superintendent * * *
and prescribe his powers and duties.
This provision empowers the legislature to vest the office in an elected official. The Governor is an elected official.
Therefore, it would appear that the legislature may exercise its prerogative by restoring the state superintendent to the
office of the Governor and prescribing the Governor's duties as superintendent. We have previously concluded that the
state superintendent is a constitutional office. 33 Op Atty Gen 197, 199 (1967). An argument can be made that two
constitutional offices may not be held by a single elected official because to do so effectively abolishes one of the offices.
See 63A Am Jur 2d Public Officers and Employees § 32 (2nd ed 1984). However, the language of Article VIII, section 1,
specifically permits a single person, i.e., the Governor, to hold both constitutional offices. Thus, this argument fails.
Similarly, an argument can be made that if the Governor also holds the office of state superintendent, he is holding dual
lucrative offices in violation of Article II, section 10, of the Oregon Constitution. There is no question that both the office
of Governor and state superintendent are public offices. So long as one of the public offices does not have any pay
associated with the performance of its duties, it will not constitute a lucrative office. Holman v. Lutz, 132 Or 185, 215-16,
282 P 241 (1929). In addition, Article II, section 10, specifically permits holding more than one lucrative office at the same
time if the constitution expressly provides for that. Article VIII, section 1, specifically provides for one person, i.e., the
Governor, to hold both the offices of Governor and state superintendent.
An argument might also be made that the legislature's authority extends only to providing for the election of a state
superintendent other than the Governor and does not authorize the legislature to reverse that action once it is taken. In 29
Op Atty Gen 161, we cited State ex rel. Powers v. Welch, 198 Or 670, 259 P2d 112 (1953) as possible authority for the
proposition that once the state superintendent was made an elective position the legislature must continue the office as
such. We now conclude that Powers does not support that conclusion. At issue in Powers was an attempt by the legislature
to add, by statute, qualifications necessary to become county surveyor in addition to those imposed by the constitution.
The court found the law to be well established that when the "state constitution provides for certain officials and names the
qualifications for such officers, the legislature is without authority to prescribe additional qualifications unless the
constitution, either expressly or by implication, gives the legislature such power." Id. at 672-73. In concluding that the
constitutional requirement that the county surveyor be an elector of the county was a qualification intended to limit the
power of the legislature to prescribe additional requirements, the court quoted from an Illinois case:
"It is essential to the freedom of elections mentioned in the constitution that every voter shall be permitted
to choose from all eligible persons and shall not be required to choose from certain classes. As he cannot be
restricted in his choice of senators to residents of a particular county, as has been mentioned, so he cannot
be restricted in his choice of Governor to persons who are more than thirty-five years of age or have been
citizens of the United States for ten years; * * * in his choice of superintendent of public instruction to
persons holding a State teacher's certificate * * ."
Id. at 677 (quoting The People v. McCormick, 103 NE 1053 (Ill 1913). Thus, we seemed to be suggesting in our earlier
opinion that Powers may lead to the conclusion that once having created the constitutional office of state superintendent as
an elected office, the legislature would be unconstitutionally prescribing an additional qualification for that office by
restricting the voters' choice of the superintendent to someone who is also the Governor. Unlike the county surveyor,
however, the state superintendent does not have any qualifications set out in the constitution. In this situation, Powers
notes that "the legislature may create any reasonable qualifications for * * * a constitutional officer where no qualification
is prescribed in the constitution itself." 198 Or at 673.
Article VIII, section 1, specifically provides that the legislature "shall be competent * * * to provide by law for the election
of a superintendent." We interpret the text of this provision to give the legislature both the legal authority to provide for a
separately elected state superintendent, and the discretion to decide whether a separately elected superintendent is
appropriate. Article VIII, section 1, does not limit, either expressly or by implication, the legislature's authority to reverse
its decision and return the position of state superintendent to the Governor. In fact, the people already expressly permitted
the Governor and the state superintendent to be one office; that choice was authorized when the constitution was ratified.
Thus, we conclude based on the text of Article VIII, section 1, that the legislature may repeal the existing statutes
providing for a separately elected superintendent and provide instead that the Governor shall be the state superintendent.
Turning to relevant court decisions, the only significant case interpreting Article VIII, section 1, aside from State ex rel
Musa v. Minear, 240 Or 315, described above, is Bd. of Educ. v. Fasold, 251 Or 274, 445 P2d 489 (1968). In Fasold, the
Supreme Court considered whether Article VIII, section 1, limited the legislature's authority under Article VIII, section 3,
to delegate responsibility for regulating and administering the public school system to the State Board of Education
(board). The court held that the constitutional creation of the state superintendent is not a limitation or prohibition on the
power of the legislature to create the board and to give the board authority to adopt and enforce rules on average class
loads per teacher. Although the Fasold court based its decision primarily on the legislature's plenary authority and the
constitutional directive under Article VIII, section 3, to "provide by law for the establishment of a uniform, and general
system of Common schools," the court's recognition of the legislature's broad powers in matters of educational policy
further supports our conclusion that Article VIII, section 1, does not limit the legislature's ability to return the state
superintendent to the office of the governor.
The historical circumstances at the time of the adoption of the Constitution do not indicate that Article VIII, section 1, was
intended to preclude the legislature from making the state superintendent the Governor. The only identified purpose for
establishing the Governor as state superintendent was to save money. Fasold, at 278; Musa, at 317. The framers of the
constitution made allowance for a future time when the responsibilities of Governor and superintendent "might unduly tax
the energies of one man," and they apparently anticipated that a future legislature would create a separate elected office
when sufficient resources were available. Musa, at 317-18. However, despite these apparent expectations, the framers
chose not to prescribe criteria for the legislature to follow in making this decision. Under these circumstances, the
legislature is free and competent to choose its own criteria, within the parameters of Article VIII, to determine the status of
the state superintendent. Cf. 39 Op Atty Gen 560, 562 (1979) (in absence of criteria under Oregon Constitution, senate
may base its decision to confirm or reject governor's appointments on whatever criteria it chooses to apply.)
An argument could be made that having the Governor take on the duties of state superintendent now would "unduly tax the
energies of one man." When the Oregon Constitution was adopted, administrative agencies did not exist; all of the duties
of the Governor were carried out by the Governor and one secretary. Today, the Governor has a staff to assist him in
carrying out his duties. Similarly, the state superintendent has a staff to help her carry out her duties. Thus, we conclude
that the fact that the Governor could not carry out all his duties as Governor and the state superintendent without assistance
does not prohibit the legislature from providing that the Governor serve in both capacities. See 33 Op Atty Gen 197, 198
(1967) ("To hold that offices established by the Constitution were restricted to duties and functions normally associated
with the office at the time of the adoption of the Constitution would strait-jacket constitutional government and confine its
grants of power to those activities that predated the present scientific age.").
We find nothing in the specific wording of the Oregon Constitution, the relevant case law or the history of Article VIII,
section 1, that would limit the authority of the legislature with respect to its decision to provide for an elected state
superintendent. Therefore, we conclude that the Legislative Assembly may constitutionally repeal laws providing for the
election of the state superintendent and provide that the Governor shall serve in that capacity.
HARDY MYERS
Attorney General

1. For purposes of this opinion, we assume that any legislation repealing the existing statutes and making the Governor the state superintendent would be effective only after the end of the term of an incumbent superintendent. If this were not the case, additional legal issues would arise.

2. The legislature failed to elect a state superintendent during the 1872 legislative session, reportedly because of the need to attend to more pressing business. As a result, the Governor exercised his authority to fill the vacancy by appointing Sylvester Simpson as state superintendent on January 30, 1873. Raymer, A History of the Superintendent of Public Instruction in the State of Oregon, 1849 to 1925, at 37 (1926).

3. The court was not required to consider whether a procedure for an "election" by the Legislative Assembly would have been constitutional. As discussed above, the 1872 statute called for the first superintendent to be elected by both houses of the legislature.

4. In 1987, the legislature enacted Senate Bill 397, which repealed laws for the election of the state superintendent and restored the office to the Governor. The bill provided that the Governor could appoint a deputy superintendent, subject to Senate confirmation, who would have authority to perform any act or duty of the office of state superintendent. Governor Goldschmidt vetoed the bill, partially on the ground that it was of "doubtful constitutionality." Senate Journal 200 (1987).