Oregon Advisory Opinions September 21, 1946: OAG 46-172 (September 21, 1946)
Collection: Oregon Attorney General Opinions
Docket: OAG 46-172
Date: Sept. 21, 1946
Advisory Opinion Text
OAG 46-172.
Statements to be inserted in voters' pamphlet may be received by secretary of state after the time limited by statute under special circumstances which will not delay the distribution of pamphlets to voters.
Dear Sir: In a letter dated September 20, 1946, you state that you have an urgent request from the officers of the Republican party for a ruling as to whether you may accept for publication in the official voters' pamphlet for the general election, November 5, 1946, a statement in behalf of the candidate for district attorney for Multnomah County, to fill the vacancy in nominations resulting from the death of Honorable Thomas B. Handley on September 16th. You further state that on August 27, 1946, a statement in behalf of the candidacy of the late Mr. Handley to be published in the voters' pamphlet was filed in your office by the officers of the State Republican Central Committee, which was within the time prescribed by § 81-2505a, O. C. L. A., as amended by § 17, chapter 50, Oregon Laws 1945. You further state:
"Acceptance of a statement in behalf of the candidate who will be nominated on September 24th will in no way delay the printing and distribution of the Voters' Pamphlets. The edition of the pamphlet that will be distributed in Multnomah County is a booklet of 100 pages and must necessarily be printed in sections. Printing of the first part of the book is now progressing, all of the facilities available to the State Printer being engaged in running off the first 64 pages of the more than 200,000 copies of the Multnomah County pamphlet that are to be printed.
"The statement of the candidate to be nominated by the Republican County Committee for District Attorney for Multnomah County would be inserted in some place in the pamphlet following page 93, in that portion of the book which will not be reached by the printer until about September 25th."
Section 81-2505a, O. C. L. A., as amended by § 17, chapter 50, Oregon Laws 1945, provides in part as follows:
"Not later than the seventieth day before the regular biennial general election the state executive committee or managing officers of any political party or organization having nominated candidates, but no others except independent candidates, may file with the secretary of state portrait cuts of its candidates and typewritten statements and arguments for the success of its principles and election of its candidates, and opposing or attacking the principles and candidates of all other parties; * * *. Not later than the fifty-ninth day before said general election the secretary of state shall deliver to the state printer, properly compiled and prepared for printing, the said portrait cuts, statements and arguments, with an order for the number of pamphlet copies of the same necessary to supply one, at least, complete as to the candidates to be voted for in any county for which the same may be designed, for every registered voter within the state of Oregon. The state printer shall begin delivering said pamphlets to the secretary of state as soon as possible and shall complete the same within thirty-five (35) days. The secretary of state shall begin mailing the pamphlets to the voters of the state as soon as they are delivered to him and shall complete the mailing
on or before the twentieth day before said general election."
The language of the statute clearly limits the time in which such proceedings shall be conducted to the extent considered by the legislature to be necessary to insure the preparation, distribution and receipt by the voters of such pamphlets in sufficient time for examination and consideration before the election.
The term "not later" as used in the section, is mandatory, as is also the provision that the state printer shall begin delivering the pamphlets to the secretary of state as soon as possible and shall complete the same within 35 days, likewise the provision that the secretary of state shall complete the mailing on or before the 20th day before said election. Consequently, there appears to be no doubt that the statute is mandatory as to time, and if that were the only matter involved in your question the answer would be clear. However, there are other rules of statutory construction which must be considered in construing the said section.
In Sutherland, Statutory Construction, 3d Edition, Horack, Vol. 2, § 2802, the author states:
"There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. The intention of the legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent.
"On occasion, some courts have said that language affirmative in form indicates that the statute is directory only, while negative language implies a mandatory provision. In particular instances this may be true, but usually the draftsman is not concerned with nice deductions of this sort. The statute should be construed according to its subject matter and the purpose for which it was enacted. Thus, Lord Campbell said, 'It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed.' And Lord Penzance said, 'I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter, consider the importance of the provisions, and the relation of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or directory'."
The author quoted from Upshur v. Baltimore City, 94 Md. 743, 51 Atl. 953, as follows:
" 'The whole surroundings, the purpose of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than another, and the cardinal rule that seemingly incongruous provisions shall be made to harmonize rather than conflict, must all be considered in determining whether particular words shall have a mandatory or directory affect ascribed to them.' "
"Generally those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the failure to obey no prejudice will occur to those whose rights are protected by the statute, are not commonly considered mandatory. Likewise, if the act is performed but not in time or in the precise manner directed by the statute, the provision will not be considered mandatory if the purpose of the statute has been substantially complied with and no substantial rights have been jeopardized."
"The purpose of all rules or maxims as to the construction or interpretation of statutes is to discover the true intent of the law." 59 C. J., page 943.
"If the requirement of a statute is so essentially a part of the plan that the legislative intent would be frustrated by noncompliance, then it is mandatory."
Vaughan v. John C. Winston Co., 83 Fed. (2d) 370, 372, (C. C. A.)
Bon Homme County Farm Bureau v. Board of Commissioners, (S. D.), 220 N. W. 618, 620.
"If the thing required to be done relates to matters of substance the provision is mandatory." People v. Butler, 20 Cal. App. 379, 384.
In Calder et al. v. Orr et al., 105 Or. 223, 235, the court said:
"It is a canon of construction that in the interpretation of statutes, the duty of the court is to ascertain and give effect to the intention of the legislature. * * *"
In Childs v. Marion County, 163 Or. 411, the court had under consideration chapter 485, Oregon Laws 1939, § 2 of which provided in part:
"Within four months after the day of delinquency of taxes of each year the tax collector shall prepare a list of all real properties then subject to foreclosure. * * *
"Section 3. On the day which is six months after the day of delinquency of taxes of the latest year, the tax collector, with the assistance of the district attorney, shall institute proceedings to foreclose the liens for all the delinquent taxes against each of the several properties included in such foreclosure list. * * *"
The court said, page 414:
"The principle of construction applicable to this subject is thus well stated in 2 Lewis' Sutherland Statutory Construction (2d Ed.) 1116, § 611:
" 'Unless a fair consideration of a statute, directing the mode of proceeding of public officers, shows that the legislature intended compliance with the provision in relation thereto to be essential to the validity of the proceeding, it is to be regarded as directory merely. Those directions which are not of the essence of the thing to be done, but which are given with a view merely to the proper, orderly and prompt conduct of the business, and by the
failure to obey which the rights of those interested will not be prejudiced, are not commonly to be regarded as mandatory; and if the act is performed, but not in the time or in the precise mode indicated, it will still be sufficient, if that which is done accomplishes the substantial purposes of the statute.'
"While the mandatory 'shall' is used in these sections, there are no negative words importing that the acts shall not be done at any other time than those designated, nor can it be seen in what way the preparation of the foreclosure list and the commencement of the suits at subsequent dates will operate to the prejudice of any taxpayer. We think that the provisions were 'designed to secure order, system and dispatch in proceeding', and, while the legislature undoubtedly intended that public officers should obey them, otherwise they would not have been enacted, it was not the intention, we think, to stamp them with the character of essential acts, the failure to perform which at the exact times prescribed would vitiate everything that might thereafter be done.
"The following authorities support this conclusion: Mothershead v. Young, 114 Or. 15, 234 P. 299; State ex rel. v. Johnson, 80 Or. 107, 156 P. 579; French v. Edwards, 13 Wall. 506, 20 L. Ed. 702; 2 Cooley, 'Taxation', (4th Ed.) 1133, § 510."
It is my opinion, based upon your statement, that the provisions as to time are mandatory in their nature, however, such provisions are only incidental to the principal purpose of the statute, which is to afford political parties and independent candidates a means of bringing directly to the attention of the voters individually statements regarding the qualifications of the candidates, as well as to present to the voters arguments or statements regarding the qualifications of opposing candidates. This is for the benefit and protection of the voters and constitutes a matter of public interest and importance, as otherwise many voters would not have the benefit of such information.
If this purpose may be fully served in the manner stated by you, without risk of postponing the time when the pamphlets would otherwise be available to the voters, it should not be defeated by application of technical rules, and the statement should be filed. However, it would obviously be unfair, under the circumstances, to permit such a statement to contain matter disparaging the opposing candidate.