Oregon Advisory Opinions September 01, 1950: OAG 50-91 (September 1, 1950)

Oregon Attorney General Opinions

1950.

OAG 50-91.

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Dear Sir: We acknowledge receipt of your letter of August 28, 1950, relating to the legality of the appointment by the democratic central committee of a nominee for the office of county treasurer. It appears that a democrat named Pliska duly filed his declaration of candidacy to run for the nomination of democratic candidate for Lane county treasurer. By letter dated May 9, 1950, he attempted to withdraw from the election but the withdrawal was ineffective not having been made under oath as required by § 81-505, O.C.L.A. The county clerk allowed the candidate's name to appear on the ballot and he received the nomination. A declaration of acceptance was sent to him, which was returned by him unsigned with the notation that he had removed from the county and did not desire to accept the nomination. This withdrawal was not in compliance with § 81-1303, O.C.L.A., which requires the withdrawal to be signed and acknowl-

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edged before some officer authorized by the laws of this state to take acknowledgment of deeds.

On June 25, 1950, the Lane county democratic central committee held a meeting and purported to appoint one Loose on the assumption that a vacancy existed. On August 12, 1950, the certification of the result of the meeting was made to the county clerk and the nomination tendered, but while the clerk accepted the tender he advised the central committee that the prior nominee had not legally withdrawn. Thereupon on August 24, 1950, the democratic central committee procured the notarized withdrawal of Pliska and filed the same with the county clerk. On the same day, but subsequent to the filing, the democratic central committee, having given the required six (6) days' notice held a meeting for the purpose of appointing a nominee. On August 25, 1950, the candidacy of Loose was again tendered together with his acceptance thereof. You further state that "The Clerk desires to know whether or not it was proper under these circumstances for the Democratic Central Committee to nominate Loose and whether or not his name should appear on the ballot."

Responding to your inquiry it is our opinion that it was proper for the democratic central committee to nominate Loose and that his name should appear on the ballot for the reasons hereinafter stated. In the first place it appears that Mr. Pliska was duly selected by the electors at the last primary election as the democratic nominee for the office of county treasurer. The attempted withdrawal a short time prior to the election was ineffective and his name appeared on the ballot. Section 81-505, O.C.L.A., provides that a candidacy shall be deemed complete unless there is a withdrawal sixty-seven (67) days prior to the primary election. Whether or not the candidate became ineligible due to his asserted removal from the county shortly before the primary election is a question of fact upon which we express no opinion. See § 81-1507, O.C.L.A. The presumption is in favor of the validity of his election as the democratic nominee as well as his right to hold the office if elected. It is a firmly established general rule that objections to the irregularities in the nomination of a candidate should be taken prior to the election: 18 Am. Jur., § 131, p. 263. Furthermore, we find nothing in the election laws which requires a democratic nominee to make formal acceptance of the nomination. The only statute requiring the acceptance of nomination by a nominee is § 81-1006, O.C.L.A., relating to minor party and independent candidates which has not been incorporated into the primary election law by express reference. Unless the statute so provides it appears to be the general rule that it is not necessary to secure the approval of a candidate whose name is to be placed on a ballot and acceptance is not a prerequisite: c.f. McCamant v. Alcott, 80 Or. 248; 18 Am. Jur., "Elections", § 124, p. 259.

Even if it be assumed that candidate Pliska became ineligible shortly before the primary election, by its very terms § 81-410, O.C.L.A., authorizes the county central committee to nominate a candidate for a vacancy which occurs "before such nominating election but within such time that a candidate for such vacancy could not be nominated at such election". Again this is a question of fact upon which we can express no opinion.

We believe the controlling fact is the legal withdrawal by Mr. Pliska from his nomination, which was duly presented and filed with the county clerk on August 24, 1950, creating a vacancy which the democratic central committee was authorized to fill by appointment. This is evidenced by § 81-1303, O.C.L.A., as amended by chapter 50, Oregon Laws 1945, which provides:

"Any person who has been nominated and accepted some nomination, as provided in this or any other act governing the nomination of candidates for public office, may cause his name to be withdrawn from nomination not later than the sixty-ninth day prior to the election, by a writing declining the nomination, stating the reason, signed and acknowledged by him before some officer authorized by the laws of this state to take acknowledgments of deeds, and certified by such officer, and by filing the same with the secretary of state or the county clerk or clerks or other officer with whom the certificate nominating him as a candidate was filed. Such withdrawal may be sent by telegram to the secretary of state through a county clerk, as provided by section 81-1306, in case of certificates of nomination." (Emphasis supplied)

Mr. Pliska complied with the foregoing provision by filing his withdrawal in legal form on August 24, 1950. The law does not require a vain or useless act, and therefore it was not necessary for the candidate to file a formal acceptance prior to his withdrawal. Section 81-410, O.C.L.A., provides:

"In case any candidate nominated under the provisions of this act shall die, withdraw, or for any reason be ineligible, * * * in any elective state, district, county or precinct office, on or after the day set by law for holding primary nominating elections, or if such vacancy occur before such nominating election but within such time that a candidate for such vacancy could not be nominated at such election, either the state, congressional or county central committee, as the case may be, of any political party, or the

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managing or executive committee thereof, may nominate a candidate for such vacancy upon the call of the chairman of such state, congressional or county committee, and the name of the person so nominated for such vacancy shall be certified to the proper officer by the chairman of such committee * * *." (Emphasis supplied)

The foregoing statute was construed in the case of Starkweather v. Hoss, 126 Or. 630, 636, wherein the court said:

"The further amendments of Section 3975, Or. L. [§ 81-410, O.C.L.A.], indicates that it was the legislative intent to confer power upon a party central committee of any political party to nominate a candidate for nearly every vacancy, if not for any vacancy, upon the ticket of the party occurring after the direct primary election has been held. * * *" Furthermore, this office has said "that the laws relating to these matters should be liberally construed, and that when they have been approximately complied with the action resulting should be given effect." Opinions of the Attorney General, 1924-1926, pp. 11, 18. See also Stackpole v. Hallahan, 16 Mont. 40, 40 P. 80, 28 L.R.A. 502.

For the foregoing reasons it is our opinion that your primary question should be answered in the affirmative.

In addition, you presented certain other specific inquiries which we will answer in the order presented.

1. "Did the candidate Pliska by reason of his removal from the county prior to the date of the primary election become 'For any reason ineligible' and was it thereupon the duty of the County Clerk to strike his name from the ballot pursuant to Section 81-1508, O.C.L.A., and 81-607, O.C.L.A."

This question is answered in the negative. Section 81-1508, O.C.L.A., relates to a situation where the ballots have already been printed and empowers the county clerk to cause the name of each nominee "who has thus withdrawn or died" to be certified to the judges of the several election precincts, and it is made the duty of the judges of such precincts to see that the name of each candidate who has "withdrawn or died" is cancelled upon the ballots. By § 81-607, O.C.L.A., the foregoing provision is made applicable to primary nominating elections insofar as it is not in conflict with the primary election law. In the instant case the candidate Pliska had not legally withdrawn nor had he died after the time the primary election ballots were printed. Obviously the foregoing sections have no application to this situation.

2. "If the name should have been eliminated is the county central committee then barred from making a nomination at a later date subsequent to the primary because of the language in 81-410 O.C.L.A. * * *".

In view of our answer to your prior question no response need be made to this inquiry.

3. "Would the meeting for the nominating of a successor if a vacancy existed need to be called six days after the actual existence of the vacancy, and therefore, if no vacancy occurred until the statutes were complied with, to-wit: on August 24, 1950, would the nomination of a successor be necessarily postponed until six days subsequent to that date referring to Section 81-907 O.C.L.A.?"

We find no provision requiring that the meeting be held six (6) days after the actual existence of the vacancy. The section to which you refer relates to meetings of the county central committee and requires that notification be given "at least six days previous to the date of any anticipated meeting, and the failure to issue such notice of an approaching meeting shall invalidate the business of the meeting."

It is noticed that § 81-410, O.C.L.A., merely provides that the nomination of a candidate where a vacancy occurs may be made "upon the call of the chairman of such * * * county committee". But even if it be assumed that § 81-907, O.C.L.A., is applicable, in our opinion the law was complied with where the statutory notice was given regardless of the fact that a vacancy had not occurred at the time of the notification. As a matter of fact you indicated that a legal withdrawal had been duly filed prior to the meeting of the committee, and in our opinion the action of the committee was in compliance with law.

4. "Is the time limit for certifying candidates set forth in 81-1008 O.C.L.A. applicable, and if so, was the tender of nomination on August 12, 1950, prior to a notarized withdrawal but after the Clerk was probably put on notice of the removal of the first declared candidate, Pliska, from the County, effective?"

Section 81-1008, O.C.L.A., is a part of the law relating to the nomination of candidates by affiliation or assembly of electors and requires that certificates of nomination be filed with the county clerk not more than one hundred (100) days and not less than eight-four (84) days before the day fixed by law for the election. This section relates to candidates selected by political parties which are not subject to the primary election law, and therefore it does not apply to a democratic party nominee. See §§ 81-401, 81-410, supra and 81-1305, O.C.L.A.