Oregon Advisory Opinions March 16, 1950: OAG 50-32 (March 16, 1950)

Oregon Attorney General Opinions

1950.

OAG 50-32.

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412

Dear Sir: In your letter of March 14, 1950, you request my opinion upon a hypothetical case as follows:

In 1944 one John Doe was in the armed services of the United States and overseas. He was not registered and had not previously voted. Assuming that he was or became eligible to vote while in the service, on March 9, 1944, he sent a card to the secretary of state of the state of Oregon, as follows:

"Being on active duty in the armed forces of the United States and desiring to vote in the coming election, I hereby apply for an official war ballot.

"My home address is 740 South 14th Street in the city, town or village of Corvallis in the county of Benton in the State of Oregon, and my voting district or precinct to the best of my knowledge is ---------. I desire that the ballot be sent to me at the following address: Co. 'A' 2nd Avn. Eng. Bn, 1st M.A.C. % Fleet P.O. San Francisco, Calif. Signature certified by:

(Signed) (Signed)"

You state that this card was signed by John Doe and witnessed by an officer in the Marine Corps; that no party designation was given on the card and that none was added thereto. John Doe further states that he voted in the general presidential election for the year 1944 for the candidate of his party for president. You also state that he has not voted since that time; that in November, 1949, he registered as a member of one of the political parties with the county clerk of Benton county, and thereafter, prior to March 10, 1950, filed the prescribed form declaring his candidacy for the office of county commissioner of Benton county in the primary of the party in which he had registered. He further states that he is willing to execute an affidavit that in 1944 he considered himself a member of the party in the primary of which he is now a candidate for county commissioner.

You ask our opinion on the following questions:

"1. Is John Doe qualified to be a candidate in the May 19 primary of the party of which he claims to be a member?

"2. If the answer to question 1 is in the negative, that he is not qualified to be such a

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candidate, who has authority to remove his name from the ballot? Can this be done by the County Clerk, or some other officer, or must a court order be obtained, and if so, who should apply to the court for the order?

"3. If John Doe is not qualified as such candidate, can his filing fee paid at the time he declared his candidacy, be refunded to him?"

We must again assume that when John Doe filed his declaration for his party nomination for county commissioner of Benton county he acted in good faith and complied with the form set out in § 81-502, O. C. L. A. This being so, we are of the opinion that the county clerk had no authority to reject the filing, but was in duty bound to file the same for his party nomination. We have repeatedly held that the county clerk's duty in that connection is purely ministerial; he performs no judicial function, and has no discretion: See Opinions of the Attorney General, 1946-1948, p. 170, and cases cited therein.

Therefore, the answer to your first question is in the affirmative.

Your second question is answered by the above, to the effect that the county clerk acts purely in a ministerial capacity, has no judicial discretion, and that no other officer has any authority to disqualify the candidate. It might be that an interested person could bring a suit to enjoin the clerk from putting the name upon the ballot. In that case, the question would lie in the bosom of the court.

Your third question is likewise answered by the above, but in order to set the matter at rest once and for all, as far as your county is concerned, the county clerk has no authority to refund the filing fee of a candidate who withdraws his name or is otherwise disqualified. Likewise, the county court has no jurisdiction over claims for such refunds. See Opinions of the Attorney General, 1938-1940, p. 28.

Section 81-505, O. C. L. A., as amended by § 2, chapter 241. Oregon Laws 1949, reads in part as follows:

"* * * If it is found that a candidate is not qualified by registration as represented in his declaration of candidacy, then he shall not be entitled to receive or hold the nomination of the party in which he claims membership; provided, however, that a temporary lapse of registration by reason of change of residence, or failure to vote in the prescribed number of elections, or a change in the candidate's name through marriage, shall not constitute a lapse of membership in such political party if, immediately prior to such temporary lapse of registration, the candidate was in fact a member of the political party through which he seeks the nomination and was not a member of any other political party within the period of 180 days next preceding the date on which he filed his declaration of candidacy; and provided further, that this provision shall not apply to any candidate whose twenty-first birthday shall fall within such period of 180 days."

The above language would indicate that it was the legislative intent to avoid the change of registration for political expediency, and has designated 180 days in the statute to guard against such a contingency.

If the candidate is not qualified to hold his party nomination then, of course, an interested party or losing candidate for the same office would have a right to go into court, contest his right, and seek to establish that fact.

In State ex rel. v. Snell, 168 Or. 162, we find the following, our supreme court speaking through Mr. Justice Bailey:

"* * * A substantial compliance with the statute * * * is all that is required: * * * we should 'keep in mind that the language of the constitution, and the statutes enacted for the purpose of carrying out the provisions thereof, should have a liberal construction, "to the end that this constitutional right of the people may be facilitated, and not hampered by either technical statutory provisions or technical construction thereof, further than is necessary to fairly guard against fraud and mistake in the exercise by the people of this * * * right": (citing case)' * * *."

There appears to be no fraud or mistake in the instant declaration of candidacy of John Doe.

On page 163 of 168 Or., we find the following:

"In passing upon the sufficiency of such a statement, 'the secretary of state acts purely in a ministerial capacity. He performs no judicial function and has no discretion': Kellaher v. Kozer, 112 Or. 149, 158, 228 P. 1086. The secretary of state is a ministerial officer and has no right to waive any constitutional or statutory requirement: * * *."

The same rule of law applies to the duties and functions of the county clerk, and the statute is entitled to a liberal construction. If John Doe is a duly registered member of his party, designated in his declaration to the county clerk, his name is entitled to be placed upon the official election ballot.

Opinions are not predicated upon hypothetical questions or assumed facts and conjectures. In the instant case there was no necessity for not disclosing the true facts. The application filed is a public record, and it is not necessary to state the case hypothetically, as we have repeatedly ignored questions upon facts which we must assume or which are stated hypothetically.