Oregon Advisory Opinions May 16, 1956: OAG 56-28 (May 16, 1956)
Collection: Oregon Attorney General Opinions
Docket: OAG 56-28
Date: May 16, 1956
Advisory Opinion Text
OAG 56-28.
District Attorney, Jackson County
In your letter of March 28, 1956, you make reference to ORS chapter 377, and particularly to ORS 377.120 (1) and 377.140. You mentioned also that Mr. Nilsen, Commissioner of Labor, has stated that the Bureau of Labor presumes that said chapter applies to and prohibits the posting of small campaign posters and cards for political purposes, the bureau being charged with enforcement of said law.
The above sections of ORS chapter 377 were enacted into law by chapter 541, Oregon Laws 1955. The title of said Act is as follows:
"Relating to the placing, erection and maintenance of advertising signs and advertising structures within view of public highways; appropriating money; and providing penalties."
In our opinion ORS 377.120 to 377.280 are general laws regulating or prohibiting outdoor advertising on or near highways and throughways. All types of advertising matter determined to be within the statutory definition of the same will therefore be subject to regulations and prohibitions contained in said general statutes, unless the same except or exempt certain advertising media therefrom, or unless some other special statute provides special provisions and regulations relative to a particular type or subject of advertising media, in which case such special statute may be construed to be an exception to the provisions and operation of the general statute regulating the subject matter.
It first becomes necessary to determine whether or not political campaign cards and posters constitute an advertising sign, card or device, designed, used or intended for advertising purposes or to attract the attention of the public within the meaning of ORS 377.120. 1 A.L.R. Perm. Digest 245, Advertising, cites 168 A.L.R. 886; an examination of the cases therein under the annotation "political advertising" seems to indicate clearly that campaign cards and posters would constitute advertising and that the same come within the definition of "advertising sign" under ORS 377.120.
The exemptions from regulation or operation of chapter 377 contained in ORS 377.140 do not include campaign cards and posters. Consequently, if such cards and posters are to be considered exempt or excluded from regulation or prohibition under said chapter, such exemption or exclusion must be found in some other statutory provision.
An examination of our election laws reveals no provision granting to candidates for public office the right or privilege of promoting their candidacies by advertising; neither do said statutes exempt such advertising from regulation such as that contemplated by ORS chapter 377.
The case of Murphy, Inc., et al. v. Town of Westport, 131 Conn. 292 (40 A. (2d) 177), is annotated in 156 A.L.R. 568. At page 570, the court is quoted as follows:
"* * * The right to advertise is limited to the advertising of a property or a business actually conducted thereon [land abutting on a public highway]. That is the sole right to advertising appurtenant to the land abutting on a public highway. Outdoor advertising for direct profit is an attempt to use the public streets and highways for private profit in a manner not appurtenant to the abutting property. Courts have now generally recognized that outdoor advertising is a private use of public highways. Such advertising is maintained as a matter of sufferance and not of right."
It cannot be said as a matter of law that a candidate seeking to publicize his candidacy by means of outdoor advertising stands in any better or different position than a person seeking to advertise his business or services by such means.
In the construction of a statute it is proper to consider the previous state of the law, the circumstances which led to its enactment, and especially the evil or mischief it was designed to correct or remedy: Superior Oil Syndicate v. Handley, 99 Or. 146. However, where language is clear and unambiguous, a statute must be held to mean what it
plainly expresses, and no room is left for construction: Deetz v. Cobbs & Mitchell Co., 120 Or. 600; State of Oregon v. Buck, 200 Or. 87.
In our opinion ORS 377.120 and 377.140 are clear in their meaning and intent and the provisions thereof leave no room for a construction which might exclude campaign cards and posters from their operation and effect. It is therefore our opinion that political campaign cards and posters are subject to regulation and the prohibitions contained in ORS chapter 377. Your attention is also directed to ORS 366.455 and 483.138.