Oregon Advisory Opinions June 17, 1953: OAG 53-65 (June 17, 1953)
Collection: Oregon Attorney General Opinions
Docket: OAG 53-65
Date: June 17, 1953
Advisory Opinion Text
OAG 53-65.
State Representative
This is to acknowledge your letter requesting our opinion as to whether or not you may use a name other than your present married name in filing for the office of a state representative from Multnomah county at the next primary and general election.
You state, in substance, that under date of May 16, 1953, you married Glenn Ackerman, and that it would be very important to you to use the name Dorothy Wallace instead of Dorothy Ackerman in that under the former name you are familiarly known to the voters of your county.
The general rule is:
"At marriage the wife takes the husband's surname which becomes her legal name. Her maiden surname is absolutely lost, and she ceases to be known thereby. Otherwise, her name is unchanged." 66 C.J.S. 4.
In many instances the use of a name by an individual is controlled by statute and in certain cases the express language of the law is mandatory. I find no such language in the election laws of the state of Oregon as it pertains to candidates for office. In fact, the law recognizes the right of a registered elector to change her name upon marriage. This right is entirely discretionary with the voter. See § 1, chapter 558, Oregon Laws 1951, and § 81-108, O.C.L.A. The name used in registration is not a restriction upon a candidate for office. See Opinions of the Attorney General, 1938-1940, p. 604.
The rule, as set out above, that is, upon marriage the husband's surname becomes the legal surname of the wife seems to be uniformly recognized throughout the United States, but this rule is not controlling upon the individual so as to make the use of the legal name exclusive.
"In the absence of a statutory prohibition, a person, without abandoning his real name, may adopt or assume a name, and he may use such assumed name to identify himself in the transaction of his business, the execution of contracts and the carrying on of his affairs. But he must not use it to defraud others through a mistake of identity." Kreuter v. United States, 201 F. (2d) 33, 35.
A person is at liberty to change his name or adopt any name he may desire so long as it is done for an honest purpose. See State v. Lutes, 230 P. (2d) 786. Fraudulent and dishonest use of a name by any person is not sanctioned under any circumstance. Purposes for which the name is adopted and the time of its use may have a material bearing upon the question. In re Faith's Application, 39 A. (2d) 638.
Your problem is not to change your name or adopt a new one, but only to retain your former name, by which you are commonly known among your associates. Dorothy Wallace was and is your true name although at the present time it is not your legal name by marriage. I see no reason why the above rule would not be applied under these circumstances in the same manner as it is applied in the case where a person desires to adopt a new name. It would seem immaterial whether it be the Christian or the surname of the individual that is changed. It is a well-known fact that there are today a number of prominent people, especially in the entertainment field, that would be practically unknown and would not be identified by their legal name. The legal name in these cases would smother out the identity of the individual. The mental process of association of name and individual would be lost. Where fraud and
dishonest practices are lacking a person should be allowed to use the name that would bring about the highest frequency of identification and thus afford the voters the opportunity of voting for a person actually known to them.
The question as to the use of an adopted name, not involving the surname of the individual, came before the Oklahoma supreme court in the case of Huff v. The Election Board, 32 P. (2d) 920, 93 A.L.R. 906, 910. The court in this case, recognizing the problem as to what is the correct legal name of a person, based its decision upon a practical construction going into the fundamental purposes to be accomplished. It was there said:
"There are frequently many candidates for the several elective offices and the voters are only acquainted with them or many of them by the names by which they are commonly known and called. That fact was known to the Legislature when it enacted the primary election law and it is clearly the legislative intent that the candidate shall be so identified on the primary and run-off primary ballot that the voters may know for whom they cast their ballot and not be deceived or misled to vote for some candidate for whom they did not intend to vote, so it is not so much a question as to the true legal name of the candidate as it is that the voter may be informed as to the candidates by the names by which they are commonly known and called and transact their important private or official business. * * *"
The only reference I am able to find in the election laws pertaining to the use of the surname is found in § 81-1503, reenacted as § 2 (4), chapter 632, Oregon Laws 1953. It is there provided that "The names of candidates for each office shall be arranged under the designation of the office in alphabetical order, according to surnames." This section was enacted for the apparent purpose of directing the secretary of state in the manner and form in which names would be placed upon the official ballot. It would not be controlling in the case under consideration and should not be construed as a statutory prohibition in the use of an adopted or assumed name.
It is my opinion that you may use the name of Dorothy Wallace in seeking a nomination for reelection as a representative to the legislative assembly.