Oregon Advisory Opinions September 27, 1948: OAG 48-158 (September 27, 1948)
Collection: Oregon Attorney General Opinions
Docket: OAG 48-158
Date: Sept. 27, 1948
Advisory Opinion Text
OAG 48-158.
When there are no properly filed nominating petitions for the election of such directors, the county clerk, if officially notified that such offices are to be filled, must provide blank spaces on the ballot therefor, in the same manner as the election of county offices.
District Attorney, Clatsop County
Dear Sir: I have your letter dated September 24, 1948, with which you enclosed two photostatic copies of nominating petitions for the election of directors, one for subdivision 1 and one for subdivision 2 of Wickiup Peoples' Utility District, the originals of which you state were received by the county clerk of Clatsop county through the mail on September 24, 1948, for filing. You called attention to section 114-230, O. C. L. A., as amended by chapter 333, Oregon Laws 1947, and request my opinion as to whether or not said petitions have been filed in time for the biennial election to be held November 2nd, 1948, and if not "what in your opinion should the County Clerk do, if anything, with reference to preparing a ballot for a write-in candidate at the election for the two directors whose office will expire, and what should the Clerk do with these petitions."
Section 114-230, O. C. L. A., of the peoples' utility district law, as amended by section 4, chapter 333, Oregon Laws 1947, so far as pertinent, provides that:
"Except as otherwise herein provided, directors shall be nominated and elected by the qualified voters of the subdivision such director represents at time of holding the biennal election. Nominating petitions must be furnished by the district and be in such form and size as the county clerk shall prescribe. Such nominating petitions for director shall be signed by at least five qualified voters and filed with the county clerk, or county clerks, not less than 60 days before the date of the election. The said county clerk shall thereupon proceed in the same manner as in the election of county officers. * * *" (Emphasis supplied)
It is to be observed that the legislative mandate is that "directors shall be nominated and elected by the qualified voters * * * at the time of holding the biennial election" and that the election therefor is to be held "in the same manner as in the election of county officers." County officers are elected at the biennial (general) elections and in case of state officers "the secretary of state shall, not less than sixty (60) days before any general election * * * prepare and furnish to each county clerk a statement showing the several state and district offices to be filled in his county at such election"; that "the appropriate city or town officers of incorporated cities or towns * * *, shall not less than sixty (60) days before any general election * * * prepare and furnish to each county clerk a statement showing the several city or town offices to be filled in his city or town at such election"; and that it is the mandatory "duty of the county clerk thirty (30) days before any general election * * * to prepare printed notices of the election, and mail two of said notices to each judge and clerk of election in each precinct", for posting. Section 81-1402, O. C. L. A , as amended by section 12, chapter 50, Oregon Laws 1945.
It appears obvious, therefore, that the legislative intent is that nominating petitions for the election of directors of a peoples' utility district shall be, as they are for state and city officers, filed with the county clerk "not less than 60 days before the date of the election" so as to enable the county clerk to perform
his mandatory duty by preparing and forwarding the notices of election within the time prescribed by law. Notices of election are to inform the legal voters of the time, place and of the objects of the election (State v. Sengstacken, 61 Or. 455, 469) and the time prescribed by the statute within which nominating petitions shall be filed is of the very essence of the thing to be done.
It is stated in Volume 3, Sutherland Statutory Construction, 3rd, sec. 5813, that:
"* * * One oft-repeated formula is that statutory requirements that are of the essence of the thing required by statute are mandatory, * * *."
The phrase, "not less than 60 days before the date of the election", requires that the specified number of days intervene between the act of filing and the day on which the election is held. To constitute a valid filing, such nominating petitions could, in no event, have been received by the clerk later than September 3rd, 1948. It is my opinion that the nominating petitions received by the county clerk on September 24th were not received within the time required by the statute and as a consequence the clerk is without authority to file them.
Answering your question with reference to the preparation of a ballot to permit the writing in of names for the offices of the two directors whose offices will expire, I am of the opinion, on the assumption that the county clerk has been officially notified that two such offices are to be filled at the election, November 2nd, 1948, and that there are no properly filed nominations therefor, that said clerk provide blank spaces on the ballot therefor "in the same manner as in the election of county officers." Section 114-230, O. C. L. A., as amended by section 4, chapter 333, Oregon Laws 1947.