Oregon Advisory Opinions March 18, 1958: OAG 58-42 (March 18, 1958)
Collection: Oregon Attorney General Opinions
Docket: OAG 58-42
Date: March 18, 1958
Advisory Opinion Text
OAG 58-42.
Secretary of State
Your letter informs me that a statement, under the provisions of ORS 255.031 (2), in opposition to the candidacy of Jason Lee for Judge of the Supreme Court, was filed with you at 3 p.m. on March 11, 1958. You ask if such statement was filed in time to be accepted by you for inclusion in the Voters' Pamphlet.
The statute in question, ORS 255.031 (2) (§ 192 (2), chapter 608, Oregon Laws 1957), provides as follows:
"Not less than 66 days before the primary election, any registered elector opposing the nomination or election at the primary election of any candidate referred to in subsection (1) of this section and affiliated with the same political party with which the registered elector is affiliated, may file with the Secretary of State a typewritten statement setting forth the reasons why the candidate should not be nominated or elected. The statement shall be accompanied by an affidavit of the registered elector stating that a copy of the statement was delivered to the candidate opposed."
Counting back from the date of this year's primary election, which is May 16, March 11 is found to be the 66th day before the election. The question, then, is whether or not a filing on the 66th day may be accepted by you.
In the case of State v. Macy, 82 Or. 81, it was held that the filing of an initiative petition on November 4 to be voted upon at the election on December 4 was filed only 29 days before December 4 and thus did not comply with an ordinance requiring such petition to be filed "not later than 30 days before the next regular city election." Counting back from December 4, November 4 is found to have been the 30th day prior thereto. The court stated at page 84, "In other words after the filing of such petition, 30 full days must elapse before the election." Thus, a filing on the 30th day prior was too late. This case has been cited with approval by many Oregon Supreme Court and Attorney General opinions. Such cases and opinions are predicated upon the common law rule, which many years ago was made a part of Oregon statutes and is now codified as ORS 174.120, that in computing the time within which an act is to be done, the first day is excluded and the last day is included.
If State v. Macy were to be controlling here, one would conclude that a statement filed on March 11 was too late under the provisions of ORS 255.031 (2).
Other factors, however, must be considered. Subsection (1) of ORS 255.031, for instance, provides that:
"Not less than 70 days before the primary election, any candidate * * * may file with the Secretary of State a * * * statement setting forth the reasons why the candidate should be nominated or elected."
Under the rule of State v. Macy, the last day for filing such statements was on March 6. It is common knowledge that you accepted approximately 200 such statements on March 7 along with a lesser number of filings for nomination. This was done, no doubt, because March 7 was the final day for filing petitions and declarations for nomination. ORS 249.060 and 249.260 provide that petitions and declarations shall be filed "not later than the seventieth day prior to the primary election." March 7 was the 70th day prior to this year's primary election, and thus it was correctly set as the final day for nomination filings. Application of the rule in State v. Macy would have caused you to suspend acceptance of Voters' Pamphlet material one day prior to the final day of filing for candidacy. I am sure the legislature did not intend such an incongruous result. Prior to the amendments to the election laws by the 1957 Legislative Assembly, the final day for filing petitions, declarations and statements was, in each case, the 70th day before the election. In the revision, the word "seventieth" was retained in the sections on filing for candidacy, but the words "not less than 70 days" and "not less than 66 days" were substituted in the sections dealing with the Voters' Pamphlet. To interpret these sections to make the final day upon which a candidate might file his pamphlet material as one day prior to the final day of filing his candidacy would ascribe to the legislature an unreasonable and inconsistent act resulting in an absurdity. As stated in Sutherland, Statutory Construction, 3rd ed. § 4812, "all sections of an act relating to the same subject matter should be considered together and not each by itself." Applying this rule to the facts here under consideration would lead to a more reasonable and consistent interpretation of the law.
In the interests of reason and consistency, the same interpretation must be given to subsection (2) as to subsection (1) of ORS 255.031. Since statements favoring a candidate were accepted on the 70th day, statements opposing a can
didate should be accepted on the 66th day.
It is my opinion that you should accept the statement in question for inclusion in the Voters' Pamphlet.