Oregon Advisory Opinions February 18, 1953: OAG 53-16 (February 18, 1953)
Collection: Oregon Attorney General Opinions
Docket: OAG 53-16
Date: Feb. 18, 1953
Advisory Opinion Text
OAG 53-16.
District Attorney, Jackson County
This is in response to your request for an opinion concerning alleged forgery connected with the acquisition of names and filing of the certificate of nomination of one Gene R. Brantley as a would-be candidate for the position of Jackson county judge.
Your letter states that the verification on the certificate of nomination secured under the provisions of § 81-1003, O.C.L.A., was almost identical with the verification required on initiative and referendum petitions. When the signatures were compared by the county clerk irregularities were discovered therein and investigation by your office disclosed extensive forgery.
Your predecessor in office sought advice "regarding the various criminal violations involved in forging the signatures of these various individuals on the certificates of nomination and filing the various certificates of nomination which contain forged signatures".
Neither the Laws of 1891, p. 18, as amended, of which § 81-1003, O.C.L.A., is a part, nor the corrupt practices act in chapter 25, Title 81, O.C.L.A., establishes a penalty expressly for the instant wrongdoing.
On September 23, 1952, this office in opinion No. 2234, expressed the belief that the wrongdoer is susceptible to prosecution under the general criminal statute for perjury, § 23-601, O.C.L.A., false swearing, § 23-604, O.C.L.A.; and forgery, § 23-560, O.C.L.A.
Additional research at this time discloses that prior to the 1935 amendment of the section, which is now § 81-1003, O.C.L.A., it was required that at least two signers to each certificate of nomination, when made by the individual electors, state under oath that the statements and signatures on the certificate were true.
Thus the legislative history of this section discloses that although there is no prohibition against the making of such an oath, it is no longer a mandatory requirement of the law.
Both §§ 23-601 and 23-604, O.C.L.A., provide that "if any person authorized" . . . to take an oath or affirmation, or of whom an oath or affirmation shall be required", shall falsely swear or affirm, such person shall be guilty of the crimes of perjury and false swearing, respectively recognized in said sections.
In the absence of a provision in some way pertaining to the giving of such an oath, it is doubtful if one could be said to be even "authorized" within the meaning of these sections. C.J.S., Perjury, § 20; 41 Am. Jur., Perjury, § 15.
It now appears that the forging of the names on the certificate of nomination was discovered before the county clerk executed his certificate of comparison pursuant to § 81-1003, O.C.L.A., and that consequently the clerk's certificate was never made. This eliminates any possibility that the clerk's certificate, being obtained by fraud, could be considered to be forged. 14 A.L.R. 317; 56 A.L.R. 582.
Section 23-560, O.C.L.A., contains an extensive list of items, the forging and uttering of which are punishable by imprisonment. The forging of names on a certificate of nomination of candidacy for public office is not one of those enumerated and hence can not be considered to be punishable under this general law. Sutherland, Statutory Construction, § 4195, vol. 2, 3rd ed.
For these reasons it is proper that I should withdraw opinion No. 2234 above referred to and substitute in its place this opinion. I also advise that no further proceedings be prosecuted under the indictment charging Brantley with forgery and that a new indictment be submitted charging Brantley under § 23-537, O.C.L.A., as hereinafter indicated.
Section 23-537, O.C.L.A., provides as follows:
"If any person shall, by any false pretenses * * * and with intent to defraud, * * * obtain or attempt to obtain with the like intent the signature of any person to any writing, the false making whereof would be punishable as forgery, such person, upon conviction thereof, shall be punished by imprisonment in the penitentiary not more than five years, or by imprisonment in the county jail not more than one year, or by a fine of not more than $500, or by both such fine and imprisonment. * * *" (Emphasis supplied)
The person who attempted to procure the county clerk's certificate of compari
son required by § 81-1003, O.C.L.A., by the presentation of a certificate of nomination under said section containing forged signatures is punishable under § 23-537, O.C.L.A., inasmuch as the false making of the clerk's certificate would be punishable as forgery. See §§ 23-560, 23-568, O.C.L.A.; State v. Hanscom, (1896) 28 Or. 427; State v. Whiteaker, (1913) 64 Or. 297; State v. Leonard, (1914) 73 Or. 451.