majority">*774DENECKE, C. J.

In McCall v. Legislative Assembly, 291 Or 663, 634 P2d 223 (1981), we declared a reapportionment statute enacted by the legislature to be contrary to the Oregon Constitution. Pursuant to the Oregon Constitution, we directed the Secretary of State to draft a reapportionment and return the draft to us. The Secretary has done this. We then announced we would accept petitions challenging the changes made by the Secretary but would not consider any claims which were part of the reapportionment statute adopted by the legislature.

Two petitions were filed. Some of the challenges made in the petitions were challenges which had previously been made or could have been made to those portions of the Secretary’s draft that were part of the reapportionment statute adopted by the legislature. We will not consider those. Two other challenges, however, must be considered.

The Secretary’s draft assigns half of the Senators, 15, those whose terms expire on January 14, 1985, to senatorial districts. The remaining senatorial districts will elect Senators in 1982. Petitioner Cargo contends that neither the Secretary nor the legislature has the power “to appoint” Senators and neither has the power to fill vacancies which, according to Cargo, will exist in every senatorial district when reapportionment becomes effective. The petitioner’s solution is to have all 30 Senators elected in 1982.

Section 3 of Article IV provides:

“The senators and representatives shall be chosen by the electors of the respective counties or districts or subdistricts within a county or district into which the state may from time to time be divided by law. If a vacancy in the office of senator or representative from any county or district or subdistrict shall occur, such vacancy shall be filled as may be provided by law.”

At the time the assigned Senators were “chosen,” they were “chosen” by the electors from the districts into which the state was divided by law.

*775The second sentence in the quoted provision referring to “vacancy” was added after the adoption of the original Constitution. Referring to that amendment, we stated: “The amendment just quoted clearly authorized the legislature * * * to specify the manner in which a legislative office may be vacated.” State ex rel Hayden v. Hill, 181 Or 585, 598, 184 P2d 366 (1947). ORS 171.050 provides a procedure whereby the legislatvie office can be filled when a vacancy occurs by death, written resignation, recall or disqualification by the house to which he or she was elected. OCLA 94-109 was a statute almost identical to ORS 171.050. In State ex rel Hayden v. Hill, supra, at 601, we held:

“We believe that § 94-109, O. C. L. A. apart from its provisions in regard to death, recall and disqualification, deems that a member of the legislature continues to remain a member of that body unless he signs and files a resignation. It recognizes no implied or presumed resignations. * * *.”

Even if we assumed, which we do not, that “vacancy” in the Constitution referred to a vacancy for a district or particular set of constituents rather than a vacancy in the office, there were no “vacancies” in this case.

The Secretary is not expressly authorized to assign Senators. Under Article IV, § 6(2) (c), however, in which the Supreme Court is authorized “to direct the Secretary of State” to draft a reapportionment of the Senators and Representatives in compliance with subsection (1), the unavoidable inference is that the Secretary is authorized to do what is necessary to draft a reapportionment plan that complies with Article IV, § 6(1); that is, she has the same power in this regard as the legislature. Hovet v. Myers, 260 Or 152, 161, 165, 489 P2d 684 (1971).

The Oregon Constitution envisages the assignment of Senators in a reapportionment. Section 4 of Article IV provides that Senators shall be elected for four years and:

“The Senators shall continue to be divided into two classes, in accordance with the division by lot provided for under the former provisions of this Constitution, so that one-half, as nearly as possible, of the number of Senators shall be elected biennially.

*776The original subsection 4 provded for the original division of Senators:

«* * * [P]rovided, however, that the senators-elect, at the first session of the legislative assembly under this constitution, shall be divided by lot into two equal classes, as nearly as may be; and the sets of senators of the first class shall be vacated at the expiration of two years, and those of the second class at the expiration of four years; so that one-half, as nearly as possible, shall be chosen biennially forever thereafter. And in case of the increase of the number of senators, they shall be so annexed by lot to one or the other of the two classes as to keep them as nearly equal as possible.

As this court observed in McCall v. Legislative Assembly, supra,the reapportionment constitutional amendment of 1952, Article IV, § 6(4), assigned Senators to districts. Prior legislatures in enacting reapportionment plans assigned Senators to district^. Oregon Laws 1899, p 6, § 5; Oregon Laws 1907, ch 269, § 4. These latter two enactments were not challenged in court but, together with the constitutional amendment, reflect a continuing view that an assignment of Senators is a valid part of a reapportionment plan and we so hold.

The other contention by petitioner Cargo, as well as by petitioner Goldstein, that must be considered is that the Secretary’s draft does not comply with ORS 188.010. ORS 188.010 was enacted by the 1979 legislature and begins, “The Legislative Assembly or the Secretary of State, whichever is applicable, shall consider the following criteria when apportioning the state into congressional and legislative districts: * * * ”

In McCall v. Legislative Assembly, supra,in which we reviewed the legislative reapportionment plan, several petitioners contended that the legislative plan was contrary to ORS 188.010. We could not consider that contention. One reason stated for our nonconsideration was “* * * it 188.010 did not deprive the 1981 legislature of power to enact chapter 261 as a later statute * * The reapportionment made by that “later statute,” however, we declared null and void and we are now considering a product of the Secretary of State.

*777Article IV, § 6(2), however, does not grant us original jurisdiction to determine whether the Secretary’s draft is in accordance with ORS 188.010. As we observed in McCall v. Legislative Assembly, supra,“* * * our original jurisdiction under art IV, section 6(2) is to review a reapportionment measure for compliance with section 6(1), including such surrounding constitutional mandates as must be respected in the interpretation and application of subsection (1). ORS 188.010 does not purport to be an authoritative interpretation of constitutionally mandated standards.” See, also, State ex rel Allen v. Myers, 260 Or 170, 488 P2d 1184 (1971).

The draft of a reapportionment returned to us by the Secretary of State is in compliance with subsection (1) and shall be filed with the Governor pursuant to section 6(2)(d).

Citation profile

How this case has been treated — in progress