Oregon Advisory Opinions March 27, 1952: OAG 52-33 (March 27, 1952)
Collection: Oregon Attorney General Opinions
Docket: OAG 52-33
Date: March 27, 1952
Advisory Opinion Text
OAG 52-33.
Dear Mr. Crose: Your letter of March 24, 1952, asks us whether or not a married woman by whom an assumed business name certificate has been filed in her maiden name only, may be licensed to conduct a collection agency in her sole capacity under such assumed name. We answer that she may not be so licensed, for reasons below stated.
Section 43-501, O.C.L.A., provides that the certificate of assumed name, without which no one may carry on, conduct or transact business in this state under any assumed name or under any designation "other than the real and true name or names of the person or persons conducting such business or having an interest therein," shall set forth "the true and real name or names of the party or parties" together with the postoffice address or addresses of such person or persons. Consequently, an assumed business name certificate can not lawfully be filed by a married woman under any other name than her "real and true name", which means her Christian name followed by the surname of her husband.
Section 50-305, O.C.L.A., as amended by § 8, chapter 583, Oregon Laws 1947, provides that collection agency license certificates "shall show the name and residence address of the applicant and the business name and address of the licensee". Necessarily the name of the applicant to do a collection business under an assumed name must be the same as the "real and true name" of the individual who has filed the certificate to use the assumed name. Therefore, the license issued to the applicant mentioned in your letter must name her as Nettie S_____, and not Nettie K_____.
Under ordinary circumstances it would be the duty of the county clerk, and not a state officer, to require an individual filing an assumed business name certificate to state therein his or her "real and true name". However, because of the fact that the discrepancy apparently was not discovered by the county clerk, but by you, it will be proper for you to call the matter to that officer's attention. It will also be proper and lawful for you to refuse to issue a license to the applicant until her assumed business name certificate is filed in the correct form, naming her as Nettie S_____, which filing you may request the county clerk to verify.
The legal name of a married woman is her Christian name, followed by her husband's surname. See 65 C.J.S., "Names",
§§ 3c and 10; 38 Am. Jur., "Name", § 10; 1 Schouler, "Marriage, Divorce, Separation and Domestic Relations", § 44; and Brown v. Reinke, (Minn.) 35 A.L.R. 413, 417.
In Chapman v. Phoenix National Bank, 85 N.Y. 437, 449, the court thus explained the law:
"* * * For several centuries, by the common law among all English speaking people, a woman, upon her marriage, takes her husband's surname. That becomes her legal name, and she ceases to be known by her maiden name."
The Oregon constitution, Article XVIII, § 7, reads as follows:
"All laws in force in the territory of Oregon when this constitution takes effect, and consistent therewith, shall continue in force until altered or repealed."
That provision, as said by the Oregon supreme court in Perry v. Fletcher, 93 Or. 43, 52, 53, constitutes a declaration that the common law of England shall be part of the law of Oregon as such common law existed at the time of the American Revolution. See also Runyan v. Winstock, 55 Or. 202, 203; United States F. & G. Co. v. Bramwell, 108 Or. 261, 266, 32 A.L.R. 829; Lytle v. Hulen, 128 Or. 483, 510, 114 A.L.R. 587.
In subsection 6 of § 9-914, O.C.L.A., as amended by § 1, chapter 228, Oregon Laws 1947, relating to a divorce decree, § 81-108, O.C.L.A., providing for reregistration of electors after change of name by marriage, § 11-701, O.C.L.A., referring to the "lawful change" of a woman's name "upon her marriage or divorce", there is substantial proof that the legislature regarded marriage as changing a wife's name.
The case of Bacon v. Boston Elevated R. Co., (Mass.) 47 A.L.R. 1100, 1101, which seems to appear in all citations on this subject, enunciated the following principle:
"The automobile was owned by the plaintiff in the first case, and in 1923 was registered in the name of 'Alice W. Willard'---her maiden name. She testified in substance that she was married in 1921; that she was not engaged in business of any kind; that she was known to her friends and generally as Alice W. Bacon; * * * and that she renewed her operator's license in the same name.
"As matter of law, after her marriage in 1921, her legal name was Alice W. Bacon. See Gen. Laws, chap. 208, § 23; Chapman v. Phoenix Nat. Bank, 85 N.Y. 437, 449. * * *"
The statute cited (General Laws of Massachusetts 1921, ch. 208, § 23) as establishing the legal name of a married woman is thus worded:
"The court granting a divorce to a woman may allow her to resume her maiden name or that of a former husband."
The comparable statutory provision of Oregon stated in § 9-914, supra, as amended, is that upon granting a divorce the court shall have authority to "change the name of the wife."
In Cloud v. McK'y, (Tex.) 216 S.W. (2d) 285, 287, it was held:
"* * * When Helen M. Ball married Scott S. McK'y her name became Helen B. McK'y, and she was no longer Helen M. Ball, and a citation by publication in a name that was not hers did not give the trial court jurisdiction over her or her property."
The appellate court of Illinois in People v. Lipsky, 327 Ill. App. 63, 63 N.E. (2d) 642, 645, held that, "it is well settled by common-law principles and immemorial custom that a woman upon marriage abandons her maiden name and takes the husband's surname, with which is used her own given name."
The petitioner before the court in that case was endeavoring to establish her right to vote without reregistration after a change of her name by marriage. The opinion states:
"* * * The statute declares that any registered voter who changes his or her name by marriage or otherwise shall be required to register anew. The provision is general and includes all changes of name whether by court decree or by voluntary adoption. It expressly recognizes a change of name by marriage, and since it is only in the case of married women that there is any recognized custom or rule of law whereby marriage effects a change of name, it must logically follow that when the Legislature expressly referred to the fact that the name of a registered voter might be changed by marriage it had in mind the long-established custom, policy and rule of the common law among English-speaking peoples whereby a woman's name is changed by marriage and her husband's surname becomes as a matter of law her surname.
"Whatever other considerations may enter into a discussion of the desire of a married woman to pursue a professional career under her maiden name and its remunerative effect upon her, the only issue here presented is the meaning of a positive law regulating the exercise of a statutory privilege. The right to register and vote is not a natural or inherent right, and the Legislature may impose reasonable limitations on the right of suffrage. It is well settled that the right to vote is conditional and can be exercised only upon compliance with statutory requirements."
The provision of Oregon law authorizing reregistration contained in § 81-108, supra, does not command a woman to reregister after change of her name by marriage, but merely permits any one who wishes to reregister after change of precinct by removal, change of political party or change of name, to do so "at his request". He is at liberty to omit doing so, but if he neglects to reregister he can not exercise the
privilege of casting his ballot at elections. Furthermore, a woman whose name has been changed through marriage and who has not reregistered will not be able, if challenged at the polls, to take the oath prescribed by § 81-1608, O.C.L.A., without stating her true name. And consequently if she wants to vote, she is required to reregister.
In State v. Ford, 89 Or. 121, 125, the court commented upon the common-law right to adopt, acquire or use any name that one chooses, and stated that the statutory procedure for changing a name by decree of court (now codified as chapter 7, Title 11, O.C.L.A.) does not abrogate "the common-law principle". The controversy therein concerned a deed said to contain "a false recital in that it described Elizabeth G. Ford as the wife of H. N. Ford." Elizabeth Frary was alleged to be the true name of the woman who signed the deed, and there was a genuine question as to the fact of her marriage to Ford. There was not in that case any ruling as to the "real and true name" of a married woman, or any occasion for such ruling.
It is not questioned that for professional or personal reasons one may freely and without violating any law use the name that he chooses, as long as that is not done in attempting to perpetrate a fraud. But that does not mean that he has a legal right to require others to accept a certain name as his real and true name if it is not such name in fact.
One who seeks the granting of a privilege conferred by statute must bring himself within the terms of the law. A license is a privilege, and the applicant named in your letter can not expect to receive one unless she complies with the law in all respects.
In the past, this office has rendered other opinions concerning the use of names by married women. We are to be understood as adhering to what is said in Opinions of the Attorney General, 1938-1940, p. 609, and as repeating the rule therein expressed, that a state license can not issue to a married woman in any other surname than that of her husband. In so far as other previous opinions of the attorney general are inconsistent with what is herein said, the same are to be regarded as modified in conformance with the views expressed in this opinion.