Oregon Advisory Opinions April 05, 1968: OAG 68-50 (April 5, 1968)

OAG 68-50.

ORS 246.021 requires that statements for the Voters' Pamphlet must actually be received by the office of the Secre-

tary of State by 5 p.m. on the last day permitted for filing the same, regardless of when such statements may have been mailed.

You ask, regarding the filing of statements for the Voters' Pamphlet for the Oregon primary election:

"* * * does a filing by mail deposited in due course in time to arrive at the Secretary of State's office before the expiration of the deadline comply with the statute even though it does not in fact arrive in time?"

ORS 255.031 requires that material for the Voters' Pamphlet for the primary election be filed with the Secretary of State "Not later than the 66th day before the primary election. * * *"

ORS 246.021 (1) provides:

"All declarations of candidacy for nomination for a public office, completed nominating petitions, statements and portrait cuts for official Voters' Pamphlets, reports of election campaign contributions and expenditures, initiative and referendum petitions and other papers and documents of like nature, required by law to be filed with the Secretary of State, county clerk, county registrar of elections, city clerk, recorder, auditor or other elections officer, not later than a specified number of days prior or subsequent to an election, must be delivered to and actually received at the office of the designated official not later than 5 p.m. of the last day permitted for such filing." (Emphasis supplied)

It is clear from the provisions of ORS 246.021, supra, that material for the Voters' Pamphlet must actually be in the office of the Secretary of State by 5 p.m. on the last day permitted for filing. Although there are some situations in which the mailing of a document has been considered for certain purposes to be the equivalent of the actual delivery thereof to the addressee (e.g., see 92 A.L.R. 1062, regarding consummation of contracts), ORS 246.021 (1), supra, specifically provides otherwise in the case of material filed for the Voters' Pamphlet. No ambiguity exists as a basis upon which to construe it otherwise.

"* * * If the statute is clear and unambiguous, then the court may not resort to rules of statutory construction in ascertaining and declaring the legislative intent. * * *" Curly's Dairy, Inc. et al. v. State Department of Agriculture, (1966) 244 Or. 15, 20, 415 P. (2d) 740.

Where the legislature has intended mailing to be the equivalent of delivery to the addressee it has clearly so provided. For example, ORS 305.820 (1) provides that a "writing or remittance required by law to be filed with or made to the State Tax Commission, county board of equalization, county assessor or tax collector" which is

"(a) Transmitted through the United States mail, shall be deemed filed or received on the date shown by the postoffice cancellation mark stamped upon the envelope containing it, or on the date it was mailed if proof satisfactory to the addressee establishes that the actual mailing occurred on an earlier date."

No such provision has been made with respect to mailing of material for the Voters' Pamphlet and, on the contrary, the legislature has specifically required that such material be present in the office of the Secretary of State by 5 p.m. on the last day permitted for filing thereof.

Your question is therefore answered in the negative.