Oregon Advisory Opinions February 04, 1952: OAG 52-12 (February 4, 1952)

Oregon Attorney General Opinions

1952.

OAG 52-12.

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349

Dear Sir: In your letter of February 4, 1952, you request our opinion on the question of whether or not you, as secretary of state, before filing or preparing the printed ballots for the county clerks for the coming primary election, should first ascertain the eligibility of a candidate for president when a petition naming Dwight D. Eisenhower was filed on August 27, 1951, by more than 1,000

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"of his supporters who are registered voters in the state of Oregon of the political party to which said candidate belongs". The supporters of said petition are all registered voters of the Democratic party. You further state that it is common knowledge that a similar petition is being circulated by registered Republican voters of Oregon, also naming Dwight D. Eisenhower "as a member of the political party to which the candidate belongs", namely, the Republican party. Both petitions conform with § 81-1107, O.C.L.A. You finally state:

"In order to avoid serious uncertainty and confusion, if and when the second petition above referred to is presented to this office for filing, I deem it desirable that the legal questions bearing upon this proceeding be settled as soon as possible. Therefore, I would be grateful for your opinion in due course upon all phases of the subject involved."

We take it that the question involved is whether or not you have a discretion under the statute to determine of which political party the candidate is a member. In other words, whether your duties are wholly ministerial in character, or whether you have a discretion to determine the eligibility of the candidate, that is, to which political party he belongs.

If your duties are ministerial you would have no discretion and would be required to file both petitions and cause the candidate's name to be printed upon the official ballots of both political parties, unless restrained by a court of competent jurisdiction to do otherwise. We must therefore resort to the statute defining your duties to determine the question.

Section 81-1107, O.C.L.A., which relates to candidates for president and how such names shall be printed on the official ballots, provides in part as follows:

"* * * The name of any candidate for a party nomination for president or for vice president of the United States shall be printed on said ballots upon the written request of such candidate filed with the secretary of state within the time provided for the filing of petitions of candidates for nomination for state and district offices, or upon the petition of 1,000 of his supporters who are registered voters in the state of Oregon of the political party to which said candidate belongs; * * * The names of such candidates for party nominations for president and for vice-president of the United States shall be printed on the official ballots for the primary nominating elections of their respective political parties, and shall be marked, counted, canvassed, returned and proclaimed in the same manner and under the same conditions, so far as the same are applicable, as the names of candidates for nomination for state and district offices." (Emphasis supplied)

A careful reading of the above statute fails to disclose any requirement or authorization on your part to pass upon the eligibility of any candidate for the office of president. The mandated provisions thereof appear to direct you to file such petitions, if regular, for the nomination of a candidate for the presidency, provided, of course, such petitions are filed within the time required by statute and contain the statutory number of registered electors, and cause the name thereon to be printed on the respective official ballots.

We take it that the question of whether or not your duties are ministerial in connection with the preparation of an official ballot when the statute requires nothing to be observed except the different statutory steps, leaving no discretion with the secretary of state but to ascertain the form in which the documents are prepared, has been before our own supreme court on several occasions, beginning with the case of Sears v. Kincaid, 33 Or. 215, at page 220, wherein Mr. Justice Robert S. Bean laid down the rule as follows:

"* * * His duty is confined to the arrangement of the names and other information concerning the candidates contained in the certificates of nomination on file in his office, in the manner provided by law for the arrangement of the names and other information upon the ballot, and to certify to the same and transmit to the various county clerks, and post in his office a duplicate thereof. In short, he is required to certify to the names of the candidates and to the other matters contained in the several certificates of nomination, and which are required by law to be placed on the official ballot, but not that the persons so named are, in fact, the nominees of any party; and, so far as the question has received judicial consideration, the holdings are quite uniform that, under statutes like ours, he has no power or authority in so doing to pass upon the regularity or validity of such nominations, or to inquire into the regularity of the conventions by which they purport to have been made. * * *" (Emphasis supplied)

In State ex rel. Smith v. Kozer, 112 Or. 287, the question was again before the court involving the duties of the secretary of state in certifying for the arrangement of the official election ballots. The court again held that the duties of the secretary of state were ministerial, and reiterated the rule theretofore enunciated in the following language on page 297:

"The duties of the Secretary of State in certifying for the arrangement of the contents of official election ballots are purely ministerial. That officer is not invested by law with any discretion as to the form of ballots or designation of the officer: State ex rel. v. Olcott, 94 Or. 633. * * *" (Emphasis supplied)

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In State ex rel. Carson v. Kozer, 126 Or. 641, the court again stated the rule, at page 648:

"* * * Where the law defines and prescribes the duty to be performed with such precision and certainty as to leave nothing to the exercise of discretion or judgment, the act is ministerial: 34 C. J. 1179." (Emphasis supplied)

This question arose with reference to an initiative petition filed in the office of the secretary of state. The court, speaking through Chief Justice Rand, stated on page 647:

"Where an initiative petition has been filed in the office of the Secretary of State, is in proper form, properly verified, contains the requisite number of signatures and shows upon its face that all of the statutory directions entitling it to be filed have been complied with, the statute makes it the imperative duty of the Secretary of State to file the petition and, upon its being filed, to certify and print the ballot title and numbers on the official ballot so that it can be voted upon. The relator contends that, in the performance of this duty by the Secretary of State, he was acting in a ministerial capacity and was not engaged in any legislation, and argues from this that the courts do have power to enjoin the Secretary of State if the bill itself, when enacted, would be unconstitutional. * * *" (Emphasis supplied)

The same doctrine was enunciated and upheld in State ex rel. Trindle v. Snell, 155 Or. 300, by Justice Rossman speaking for the court, on page 309. Likewise, our court in State ex rel. v. Snell, 168 Or. 153, through Justice Bailey, stated on page 163:

"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: State ex rel. Trindle v. Snell, 155 Or. 300, 309, 60 P. (2d) 964." (Emphasis supplied)

The authorities of other states support the doctrine herein enunciated. Under the circumstances, your duties being ministerial in character, you have neither the duty nor authority to determine the political party to which the candidate belongs. Unless the sponsors of either request a withdrawal of the petition filed, or you are restrained by a court of competent jurisdiction, you have no alternative but to file and have printed upon the respective official ballots the name of the candidate for president in accordance with the mandate of the statute.