Oregon Advisory Opinions September 01, 1960: OAG 60-112 (September 1, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-112
Date: Sept. 1, 1960
Advisory Opinion Text
OAG 60-112.
State Representative
You have asked:
"I would appreciate an Attorney General's opinion on whether items of nominal value such as book matches, emery boards, balloons, shopping bags, pencils, flower seeds and other campaign novelties come within the prohibition scope of the present law or whether, because of their nominal value or other reason, they are outside the present law's scope."
The language of ORS 260.390 (1) is as follows:
"(1) Any person is guilty of a corrupt practice if he expends any money for election purposes contrary to the provisions of any statute of this state, or if he is guilty of undue influence, impersonation, the giving or promising to give, or offer of any money or valuable thing to any elector with intent to induce such elector to vote for or to refrain from voting for any candidate for public office, the ticket of any political party or ORGAnization or any measure submitted to the people at any election, or to register or refrain from registering as a voter at any state, district, county, city or school district election for public offices or on public measures." (Emphasis supplied)
In Opinions of the Attorney General, 1938-1940, p. 27, this office considered the legality of the distribution by a candidate of lead pencils with wording on them soliciting votes for a particular candidate and reached the conclusion that the same was in violation of Oregon law. A similar result was reached in Miller v. Maier, (1917) 136 Minn. 231, 161 N.W. 513, where the candidate by word of mouth solicited votes and at the same time dispensed drinks of intoxicating liquor. See also, Middleton v. Poer, (1938) 275 Ky. 401, 121 S.W. (2d) 28.
As you have pointed out the 1957 legislature repealed ORS 260.290, which prohibited candidates from treating anyone to meats, drinks, entertainment, provisions, clothing, liquor, cigars or tobacco.
You suggest the possibility that the provisions of ORS 260.390 (1) have been repealed by implication through the repeal of ORS 260.290. Repeals by implication are not favorities of the law: Portland v. Bingham, (1957) 209 Or. 575, 307 P. (2d) 492.
The language of ORS 260.390 (1) is so broad and clear that it is impossible to conclude that the legislature intended to amend, modify or repeal the same by implication by removing the prohibition against treating.
I have also carefully considered your suggestion that the legislature may have intended by the repeal of ORS 260.290 to thereby authorize the giving of items of only nominal value. The answer is that the legislature has never seen fit to place a monetary ceiling or floor on the value of any item under ORS 260.390 (1). You will note that the legislature has not mentioned any mone
tary sum. Moreover, the Elections Division of the Secretary of State's office for more than 20 years has consistently followed the same interpretation as laid down in the prior opinion of this office as to lead pencils cited above. Nothing short of an expressed amendment or repeal of ORS 260.390 (1) would, in my opinion, modify or liberalize its clear and unmistakable terms.
So long as the item given to a voter by a candidate is a "valuable thing" and is given with intent to induce such elector to vote for or to refrain from voting for any candidate for public office the same would constitute a violation of the section under consideration. Consequently, if any of the objects enumerated by you is a "valuable thing" for which the elector would otherwise have to pay money or give other consideration to acquire, even though its value is only a few cents, it is prohibited under the law. Until the legislature expressly modifies these provisions by fixing a monetary limit on the value of items which may be given to a voter, the law must remain as now construed. The function of the Attorney General is to interpret the law, not to make it. Making law is solely within the power of the legislature.
It is my opinion that the distribution of any of the above items with a message thereon soliciting votes on behalf of a particular candidate is a technical violation of ORS 260.390 (1).