Oregon Advisory Opinions February 27, 1941: OAG 41-37 (February 27, 1941)

Oregon Attorney General Opinions

1941.

OAG 41-37.

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201

The secretary of state may refund overpayment for space in the voters' pamphlet.

Dear Sir: I am in receipt of your letter of February 19, 1941, enclosing the letter of Mr. Monroe Sweetland dated February 16, 1941, in reference to his claim for a refund of $40 as overpayment for one page of space in the voters' pamphlet in behalf of an independent candidate for election as representative in the legislative assembly at the 1940 general election. You call my attention to section 81-2506, O. C. L. A., and ask my advice as to what action your department should take in this matter; also mentioning the fact that House bill No. 397, pending in the current session, if enacted, will remove the apparent discrepancy.

Referring to said section of the statute, it is noticed after providing for the payment by political parties and independents for space in the voters' pamphlet at the rate of $50 for each page, and limiting parties to 24 pages and independents to two pages each, the proviso is added:

"* * * that space devoted to candidates for the legislature who have been selected by the parties at the preceding primary election, shall be paid for at the rate of $10 for each printed page of space, which space shall be in addition to the 24 pages above allotted to the political parties."

Section 81-2503 provides that the charge per page in the primary election pamphlets for legislative candidates is $10. Apparently, therefore, the policy established by the legislature is to charge $10 per page for such candidates, although the provision last referred to relates only to the primary election, while section 81-2506 relates to the final election in November.

The proviso above quoted from in said section 81-2506 is capable of the construction that its purpose is to authorize the use of pages for legislative candidates of political parties for the legislature, in addition to the 24 to which the party statements are limited, and fixes the charge therefor at $10 per page. It is probably true that a literal construction of the language would limit such payment at the rate of $10 per page to the space devoted to candidates for the legislature who have been selected by the parties at the preceding primary election and would not include independent candidates, but this construction would appear to be a discrimination between candidates for the same position, contrary to section 20 of article I of the state constitution. A construction of a statute which would make it invalid will always be avoided if possible and another can be adopted which is in conformity with the constitution. Also, as already pointed out, the policy has been established by section 81-2503 of charging only $10 per page for legislative candidates when separately appearing in the voters' pamphlet. It would seem, therefore, that the provision of section 81-2506 should be construed in conformity therewith, if possible.

It is my opinion, therefore, that, under the circumstances, you would be justified in making the requested refund.