Oregon Advisory Opinions December 16, 1941: OAG 41-301 (December 16, 1941)
Collection: Oregon Attorney General Opinions
Docket: OAG 41-301
Date: Dec. 16, 1941
Advisory Opinion Text
OAG 41-301.
The statement filed by the Retail Grocers' Association of contributions and expenditures in connection with the petition for referendum of the "cigarette tax bill", (chapter 488, O. L. 1941), is insufficient to comply with the provisions of the law requiring such statements to show "for what service" each payment was made. (The statement was afterward held by the supreme court to substantially comply with the statutory requirement and, therefore, sufficient.)
Other statements filed in connection with the same referendum petition comply with the statute.
Secretary of State.
Dear Sir: You have furnished me copies of the statements of contributions and expenditures filed in your office by the sponsors of the petition to invoke the referendum against House bill No. 558, (chapter 488) of the forty-first legislative assembly, known as the "cigarette tax bill," and have requested that I examine these copies of such statements and advise you whether or not they comply with the requirements of section 81-2412, O. C. L. A., and, if not, in what particulars they are insufficient.
Said section reads as follows:
"That the sponsors of any initiative or referendum petition, at the time of filing their completed petition, shall file with such completed petition a statement showing the contributions and expenditures for said petition, verified by the sponsor or sponsors filing the petition, giving the name and postoffice address of each and every contributor, to the expense of such petition and the amount paid by each; also, the name and postoffice address of every person to whom and for what service any money was paid or promised on account of such petition, or which is owed and to be paid. If such verified statement is not filed, as herein required, the secretary of state shall not place the measure petitioned for on the official ballot."
It has also been suggested that the provisions of the Corrupt Practices Act (sections 81-2501 to 81-2553, both inclusive, O. C. L. A.), insofar as appropriate, are applicable to the statements to which your letter refers. An examination of such Corrupt Practices Act however shows that it relates only to practices, contributions and expenditures in connection with elections only, and has no reference whatever to statements required to be filed in connection with initiative and referendum petitions.
The first of such statements is that of the state Retail Grocers Association, designated as "one of the sponsors, on behalf of all sponsors of petition for referendum---cigarette tax bill, Oregon Laws, 1941, chapter 488," the first page of which contains a statement of the contributions amounting to $6,921, and the expenditures "as per statement attached, $6,400," and is verified by G. J. McPherson as secretary of the state Retail Grocers Association. Attached thereto are two pages setting forth by number the respective checks issued, the dates
thereof, the persons to whom issued, with their postoffice addresses, and a brief statement in each instance purporting to show for what such check was issued; also, attached thereto are two pages bearing the caption "Statement of persons to whom payments have been made or compensation promised, giving the postoffice addresses and services rendered." The statements contained on these two pages are in three columns, the first column headed by the word "Name," the second "Services," and the third, "Amount." The totals of expenditures shown on the first two pages above mentioned and those on the second two pages are each $6,400. Following such statements of expenditures are two separate statements, one by the Grocers and Merchants Association, verified by G. J. McPherson, as secretary thereof, showing no contributions nor expenditures, and one by G. J. McPherson personally, and verified by him, showing no contributions and no expenditures.
In approaching an examination of these matters it is well to bear in mind the duty and authority of the secretary of state in reference thereto. Our supreme court has not been called upon to render any decision upon the acceptance or rejection of such statements of contributions and expenditures in connection with initiative and referendum petitions, but has clarified the powers and duties of the secretary of state in connection with his passing upon the sufficiency of the petitions themselves. It seems clear that the secretary of state's powers and duties as to such petitions and the statement of expenses required to accompany the same when filed in his office are of the same nature and subject to the same limitations.
In the case of Kellaher v. Kozer, 112 Or. 149, at page 158, the court used this language:
"* * * In considering and counting the signatures upon an initiative or referendum petition, or in refusing to consider and count any signature thereon, and in the performance of his duties petaining thereto the secretary of state acts purely in a ministerial capacity. He performs no judicial function and has no discretion. The statute itself contains the directions he must follow, * * *".
The case of State v. Swanson, 2.94 N. W. (Neb. 1940) 200, involved the requirement of the statute of Nebraska of the filing, with initiative or referendum petitions, of statements as to the sponsors and money contributed for the purpose of defraying the cost of preparing, printing, and circulating such petitions. At page 201 the court used this language:
"Relators contend that the questioned provisions of the statute are directory and not mandatory. It seems to us that none of the features of a directory statute is present in this case. It would seem to us that an anomalous situation would be created if statutory safeguards against the perpetration of frauds and deceptions were held to be directory. Such requirements must by their very nature be mandatory, or the purposes of the legislature will be completely defeated. We hold that the provisions of the statute herein discussed are mandatory and that the failure of relators to comply therewith justifies the action of the secretary of state in refusing to file the same."
The case of Duff v. Salyers, 295 S. W. (Ky.) 871, arose upon the question whether or not slight clerical errors in a statement required by the corrupt practice act of that state invalidated the election. At page 872 the court used the following language:
"While the statement does not contain all of this, all of it, in substance, is embraced in the affidavit following the form given in the statute, except the dates when the money was paid. This is a substantial compliance with the statute. To hold that an election was invalidated by a mere clerical error in omitting the word 'and' in writing out a statement would be to defeat the very purpose of the statute. The statement gives the amount spent and what the money was spent for. The failure to date the items in no manner affects the substance of the matter. All that is required is a substantial compliance with the statute, and this was done here."
The case of Dempsey v. Cassady, 64 S. W. (2d) (Ky.) 161, is to the same effect.
The case of Creech v. Fields, 124 S. W. (2d) (Ky. 1939) 503, involved the failure of a candidate to observe the requirements of the corrupt practice act of that state in filing his statement of expenditures. The court held such statement fatally insufficient. At page 504, I quote:
"Eight items are then listed, aggregating $57.34, but only the amounts and purposes of the expenditures are shown. The dates and persons to whom the money was paid are not shown. The above form of oath is altogether omitted. * * *
"It has been consistently held that the filing of these statements is mandatory though the time of filing is directory; however, that a substantial compliance with the form is sufficient. McKinney v. Barker, supra; Felts v.
Edwards, 181 Ky. 287, 204 S. W. 145; Owsley v. Vaughn, supra, and many other cases. And, as held in McKinney v. Barker, supra, a candidate is not excused by the fact that he spent no money in the campaign since the statutes make it necessary that such fact be divulged in the statement. In Duff v. Salyers, 220 Ky. 546, 295 S. W. 871, we held a certain statement to be a substantial compliance with the terms of the statutes. However, it was in such form as had the effect of saying that the candidate had received no contribution and that neither he nor anyone else in his behalf had spent anything or promised anything more than was contained in the statement. That disclosure is wholly lacking in the statements filed by the appellant. The statute requires a full disclosure of what has been done, and, as well, a statement of what has not been done. We are constrained to hold that the failure to comply with the statute in a more substantial way results in the forfeiture of the appellant's right to the office. To that extent the judgment is affirmed."
The case of In Re Umbel, 80 Atl. (Pa. 1911) 541, was upon the question whether or not the statement of expenditures made by a candidate complied with the requirements of the statute of that state. I quote from pages 541 and 542, as follows:
"* * * The account embraced two classes of items: * * * There are 12 items of the latter class, showing payments to five different persons, aggregating $3,670, and these give no further information as to the purposes for which the money was actually expended than is indicated by the words and the figures above quoted. * * * Although the candidate for nomination may make expenditures for lawful purposes through an agent, 'it is still he that acts, and when he accounts he must account for all that he has done.' Bechtel's Election Expenses, 39 Pa. Super. Ct. 292. An account which merely exhibits the fact that the candidate has deposited money in the hands of an agent to be used for legitimate expenses, and does not show the person to whom and the purpose for which the agent paid the money, is not such 'a full, true, and detailed account' as the act plainly contemplates. * * *
" 'To be a true account within the spirit and intent of the act, it must set forth each and every sum of money disbursed by the candidate, whether personally or by his agent, for election expenses, the date of each disbursement, the name of the person to whom paid, and the object or purpose for which the same was disbursed; * * *".
Bearing in mind the requirements of the statute quoted above and the precedents laid down in the foregoing decisions, I notice, first, that the statements of moneys paid to each of five persons, as set forth in the condensed account under the caption above quoted, give the names and addresses of the persons to whom such moneys were paid and the amounts thereof, but only designate the service as "field work and expense." The respective amounts so set forth are the same as the total of the several checks issued to such respective persons as shown by the detailed statement, and the indication of services is substantially the same, although it varies somewhat in some instances. The question here presented is whether the designation of "field work and expense" is a compliance with the requirement of the statute, which is that the sponsors of any initiative or referendum petition at the time of filing their completed petition shall file a statement showing, among other things, "the name and postoffice address of every person to whom and for what service any money was paid or promised on account of such petition, or which is owed and to be paid."
It is here noticed that the requirement is not only that it shall show that the money was paid for services, but "for what service".
"Field work" is defined by Webster's New International Dictionary (1941) as:
"Work in the field; specifically, the task of gathering scientific data from the field."
That authority gives numerous definitions of the word "field." The one most appropriate to the question here considered is as follows:
"The sphere of practical operation, as of an organization or enterprise, as distinguished from that of administration or theoretical study; also, the place or territory where direct contacts, as with a clientele, may be made, or first-hand knowledge may be gained; as, to send three geologists into the field; large returns from agents in the field. "
The word "service", by the same authority, is defined, among other things, as:
and"Performance of labor for the benefit of another, or at another's command; attendance of an inferior, hired helper, slave, etc.",
"Act or instance of helping, or benefiting; conduct contributing to the advantage of another or others; as, to
render service; a service to the cause of freedom."
Applying these definitions, the term "field work," as so used, amount only to a statement that work or labor was performed for the benefit of the referendum petition or those sponsoring it, or acts or instances of helping or benefiting such petition, or the effort of the sponsors thereof, were performed or occurred in the sphere of practical operation of the organization or enterprise, as distinguished from that of administration, but it does not specify or indicate in any way of what such service or work consisted. It might, to the same effect, be stated as simply work or service in connection with the referendum petition. In other words, it wholly fails to state what such service was for which money was paid, and is, therefore, as I understand it, wholly insufficient for failure to comply with such requirement of the statute.
The same may be said as to the designation of expense. There is no statement of what was obtained for the benefit of the petition or the enterprise of its sponsors by such expenditure. One may assume that the expense was incurred as expense of travel and subsistence of the person rendering such service, but, as pointed out by our own supreme court and the courts of other states, we are not at liberty to assume or supply anything not shown by the report or statement itself.
In the case of another person to whom money is shown to have been paid the service is designated in the general statement as "labor, automobile, expense". In the detailed statement or check register it is stated to be "Labor & auto", "Labor and auto use", "Self and auto use", the latter in three instances. Clearly, this designation of "what service" does not comply with the requirement of the statute for the reason above set forth.
In another instance, the statement of services is: "Notarial fees and expenses." No indication is made of what expenses were thus paid or "what service" was the basis of such expense.
Another ground of apparent failure to comply with the statute is shown with reference to the first four names appearing on both the summarized statement and the detailed statement or check register attached thereto. The latter shows that checks Nos. 1, 2, 3 and 4 were issued to the persons there named, but the services are indicated as: "Advance See Vouchers Nos. 35, 39, 48, 24," respectively. Referring to those check numbers which are the only indication of vouchers submitted, it is shown that checks were issued, bearing the latter numbers, for the amounts therein stated, and that they were for (35) "field work and expense," (39 and 48) "labor and expenses in field," and (24) "field work and expense", respectively.
It may be reasonably understood that the intention was to show by the data in connection with the checks to which reference is made the services for which the said checks numbered 1, 2, 3, and 4 were issued. The insufficiency of such designation of services as shown by the checks numbered 35, 39, 48 and 24 has already been discussed. And in addition thereto another failure to comply with the requirement of the statute, if the detailed or check register statements are to be taken at their face value, is that while it is shown that the said checks, numbers 1, 2, 3 and 4, were issued to the persons named, there is an entire failure to show the amount so paid to each of such persons. This obviously does not comply with the provision of the statute requiring that the name and address of each person to whom "any money" was paid should be shown, as well as "for what service." In other words, it fails to show what money or what amount of money was paid by said checks 1, 2, 3 and 4, or the particular service for which it was paid. It is clear that any amounts paid on such checks are not included in the amounts shown opposite the names of the payees of such checks in the general or summarized statement, because the amounts appearing opposite the names of such persons are the same as the total of the checks shown on the check register statement, as paid to such persons, exclusive of said checks Nos. 1, 2, 3 and 4. This, therefore, is again a failure in the statement to comply with the statute.
An item is shown as having been paid to one person in the sum of $29.50 for "notarial commission". Referring to the check register statement it is shown that two checks Nos. 5 and 6 were issued to that person, the first for $12 and the second for $17.50, and the service in each case indicated as "notarial commission." Everyone is presumed to know and take cognizance of the provisions of the statutes of the state. Section 96-101, O. C. L. A., provides the fee to be paid to the secretary of state by one securing a notarial commission, as $6. Therefore, the overplus between $6 and $12 and $17.50, respectively, is not accounted for. Again it is obvious that one person cannot use two notarial commissions. Whatever expense such items cover, therefore is not set forth other than the amount of $6.
To the same person is listed "office expense" $195.09. There is no showing of what such "office expense" consisted.
In the check register there are statements of various items of "office expense, etc.," "cash advanced a/c expense," "notarizing and office expenses," "telephone bill," "paid for notarizing," aggregating the sum of $195.09, showing that they were paid to this same person; but no specification is made of what expenses, other than the telephone bill, were paid, and no statement of the respective amounts paid to notaries public, or who they were, or their respective post-office addresses.
It seems clear that payments to notaries public which are included in this item of $195.09 are not among those specifically set forth in the latter part of the summarized statement, because both the amounts of such payments which are shown, and the item here under consideration, are included in the total of all expenditures and it is not reasonable to believe that such payments would be included twice.
Additionally, there is an item charged, as having been paid to the same person, of $129.30 for "Advanced for general expense." Here again there is no statement of what expenses were paid with the money thus advanced, or to whom, with their postoffice addresses, or in what amounts.
The principles set forth by the supreme court of Pennsylvania in the case of In re Umbel, 80 Atl. 541, above quoted, are particularly applicable to items for advances, because the presumption is that such advances were made of money to an agent to be used in the payment of necessary and legitimate expenses in support of the referendum petition and, therefore, in order to comply with the statutory requirement it is necessary that the agent should show to whom such moneys were paid, the respective amounts thereof, and the postoffice addresses of the persons receiving such payments, and for what service.
As to many of the discrepancies here pointed out, it is, no doubt, possible that the facts required to be stated by the statute could have been included, but the fact remains that they were not.
For the foregoing reasons, it is my opinion that the said statement filed by the State Retail Grocers Association, in connection with the said referendum petition, does not comply with the requirements of the said section 81-2412, O. C. L. A.
Upon examination of the statements filed by the Grocers and Merchants Association, and G. J. McPherson, I find that they are in compliance with the said statutory provisions.