Oregon Advisory Opinions April 03, 1962: OAG 62-41 (April 3, 1962)

Oregon Attorney General Opinions

1962.

OAG 62-41.

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395

You request an opinion as to whether ORS 249.356 and 250.121, which provide for the publication of facsimile ballots in the primary and general elections, require that in counties with a population of 10,000 or more the two newspapers with the largest circulations be used to publish the ballots.

ORS 249.356 (2) and (3) and ORS 250.121 (2) and (3) are identical in language, providing as follows:

"(2) The facsimile shall be published in at least one issue of one newspaper in each county with a population of less than 10,000 or in each county in which no more than one newspaper is published, and in at least one issue of two newspapers in each county with a population of 10,000 or more in which more than one newspaper is published. The county court or board of county commissioners shall , at the first regular meeting each year, select the newspaper or newspapers in which the facsimile shall be published and shall notify the county clerk of such selection. The newspaper must be published within the county and shall be the newspaper having the largest bona fide circulation within the county as shown by the last annual report made to the United States Government.

"(3) If the county court or board of county commissioners determines that publication of the facsimile in the newspaper or newspapers selected under subsection (2) of this section does not give sufficient notice of the election, it may select one or more additional newspapers in the county, in each of which the facsimile shall be published at least once. Such selection shall be made at the same time, but need not be made in the same manner as provided in subsection (2) of this section. The county court or board of county commissioners shall notify the county clerk of such additional selection." (Emphasis supplied)

ORS 249.356 (2) prescribes that in counties with a population of 10,000 or more a minimum of two newspapers shall be used to publish facsimile ballots.

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It also requires publication in the "newspaper having the largest bona fide circulation."

ORS 249.356 (3) authorizes the county court to select one or more additional publications if the "newspaper or newspapers selected under subsection (2) of this section does not give sufficient notice of the election."

The use of the word "shall" implying a mandatory duty through subsection (2) and the use of the premise word "may" throughout subsection (3), both words being employed in the same section, is ordinarily a strong indication of the intention of the legislature that the requirements of subsection (2) are mandatory while under subsection (3) a discretionary authority is conferred on the county court. Osborn v. Logus, (1895) 28 Or. 302, 309, 37 P. 456, 38 P. 190, 42 P. 997.

Since there is a minimum requirement of publication of the ballots in two newspapers under subsection (2), a corresponding requirement may be fairly inferred that not one but each of the two newspapers must have the largest bona fide circulation.

ORS 249.356 is directed to placing the electors of a county upon notice of what form the ballot will take. The primary rule of statutory construction is to ascertain the meaning of the legislature and to give it effect. State Highway Commission v. Rawson, (1957) 210 Or. 593, 312 P. (2d) 849. This object of the statute in giving notice can best be achieved by construing the statute to require the widest dissemination by the use of the newspapers with the largest circulations, thereafter permitting the county court to exercise its own discretion as to whether additional notice is necessary and as to the selection of an appropriate newspaper.

Accordingly it is our opinion that ORS 249.356 and 250.121, providing for the publication of facsimile ballots in the primary and general elections, require that in counties with a population of 10,000 or more the two newspapers with the largest circulations be used to publish the ballots.