Oregon Advisory Opinions September 19, 1950: OAG 50-97 (September 19, 1950)

Oregon Attorney General Opinions

1950.

OAG 50-97.

---

37

Dear Sir: Receipt of your letter of September 15, 1950, is hereby acknowledged. You stated therein that on August 14 of this year a petition bearing sufficient signatures was filed with the county clerk of Tillamook county, requesting the name of Howard Owens to be placed on the official ballot at the next general election as a candidate for the office of "county commissioner" of Tillamook county. At the next general election to be held in the county there will be placed upon the ballot the names of candidates for county commissioner for a four-year term and also candidates for county commissioner for the unexpired term ending January 1, 1953. There is nothing in the petition which you enclosed indicating for which of the two terms Howard Owens was intended as a candidate. You therefore ask:

"Would you please advise me as to whether or not the county clerk of Tillamook County, Oregon, would be authorized to place his name upon the ballot for the next general election and if so, for which particular term the name of Howard Owens should be placed."

Section 81-1004, O.C.L.A., relating to nomination of candidates by affiliation or assembly, provides:

"All certificates of nomination shall state such facts as required by this chapter, and also,

"(1) The name of the candidate;

"(2) The office for which he is nominated;

"(3) The party, if any, which he represents, and, if nominated by individual electors or assembly, the word 'independent';

"(4) His place of residence, with street and number thereof, if any * * *" (Emphasis supplied)

The question presented by you is whether the instant petition complies with the foregoing section, especially the requirement relating to the specifications of the office for which the candidate is designated. As previously stated, there are two offices of "county commissioner", one for a two-year term and the other carrying a four-year term.

In our opinion the petition is defective because of its failure to designate the particular office which the candidate is seeking. In 29 C.J.S., "Elections", § 108, p. 141, it is said:

"It is essential to the validity of a nomination by petition of electors that there have been a compliance with the substantial requirements of the statute, such as those relating to signatures and verification thereof, and such as those relating to the specification of the residence and the business of the signers, the time of signing, and specification of the office for which the candidate is designated. * * *" (Emphasis supplied)

Illustrating the foregoing statement, it was held in Leik v. Meisser, 91 N.Y.S. (2d) 369, that a nomination petition was defective where it did not state the election district for which the candidates were designated to serve as members of a party county committee. At page 370 the court said:

"* * * The Board of Elections rejected the petitioners' designating petition 'because it did not comply with Section 135 of the Election Law in that the party position for

---

38

which it purported to designate Robert J. Leik and Frank Jund did not state the Election District for which they were designated to serve as members of the Democratic County Committee.' * * *

"In Matter of Samuel Buchler v. Cohen, 242 App. Div. 803, 275 N.Y.S. 600, our Appellate Division unanimously affirmed an order of Special Term which sustained the Board of Elections of the City of New York in its refusal to file a nominating petition for the reason that such petition did not specify the particular Congressional District in which the Petitioner was seeking office. Our Court of Appeals in 265 N.Y. 605, 193 N.E. 341, affirmed the Appellate Division. * * *

"Accordingly, the respondent Board of Elections was justified in rejecting the designating petition in question and the application of the petitioners must be denied."

In the case of Katz Nomination Papers (1949), 65 Pa. D. & C. Rep. 13, it was held that the failure of signature sheets to specify the office for which the nominee was running was a fatal omission, necessitating disregard of the defective sheets as invalid. See also McKesson v. Donaghue, 147 P. (2d) 337.

In several cases dealing with this problem it has been decided that failure to designate particularly the office involved was not fatal where there had been "substantial" compliance with the law, especially where it was apparent from other facts in the petition which office was sought, or the election board or officer had full knowledge of that fact: See Corn v. Cohen, 49 N.Y.S. (2d) 913; Hartigan v. Molloy (R.I.), 2 A. (2d) 66.

However, there is nothing in the petition which you enclosed in your letter that would indicate which of the two positions for county commissioner the candidate named therein is seeking. An out and out omission can hardly be termed a substantial compliance with the election laws. The county clerk of Tillamook county has no authority, at least to my knowledge, to look beyond the allegations and the contents of the nominating petition, and accordingly there is no way for him to select the term or office on behalf of the candidate so that his name may properly appear on the general election ballot. That it is the duty of the candidate to select the particular office he is seeking where several positions are open to him is further evidenced by § 81-1005, O.C.L.A., which provides in part:

"* * * No person shall be qualified to be a candidate for more than one office to be filled at the same election; * * *."

Under the facts submitted we are constrained to advise that in our opinion the county clerk of Tillamook county is not authorized to place the name of Howard Owens upon the ballot for the next general election for the reason that the petition fails to designate particularly the office which is sought.