Oregon Advisory Opinions January 23, 1956: OAG 56-2 (January 23, 1956)
Collection: Oregon Attorney General Opinions
Docket: OAG 56-2
Date: Jan. 23, 1956
Advisory Opinion Text
OAG 56-2.
Secretary of State
This is in response to your inquiry concerning the interpretation and administration of House Bill No. 454 enacted as chapter 726, Oregon Laws 1955. Section 1 of the Act amended ORS 250.310 to require that election poll books contain a space for the address of the elector and a space for him to sign the poll book.
Section 2 of House Bill No. 454 amended ORS 250.640 to provide in part that:
"* * * Any person desiring to vote shall give his name and residence to the first election clerk, which clerk shall not be of the same political party as the chairman, who shall then announce the name and residence distinctly to the second and third clerks. The person desiring to vote shall then sign his name with indelible pencil or pen in both of the duplicate poll books in the space provided therein for the voter's signature, which will serve to attest to his residence. The first clerk shall inform the voter that his signature is an attestation to the correctness of his residence within the precinct. A sign shall be posted in plain sight at the polls stating substantially that it is a misdemeanor for a voter to sign his name if his residence is not within the precinct at the time he signs the poll book. * * * If an elector is permitted to vote whose name does not appear on the voters list furnished by the county clerk, the clerk shall enter his name in the place on the poll books provided for that purpose and place the number of the ballot after his name, but such elector shall also sign the poll books as provided in this section." (Emphasis supplied)
Section 5 of the bill added to the law the following prohibition:
"(1) No person shall knowingly sign his name in the place provided for the voter's signature in the poll books if the residence address appearing to the right of his signature in the poll books is not his residence address at the time he signs the poll book." ORS 250.645 (Emphasis supplied)
Your letter refers to the ambiguity between these two sections in the following language:
"What appears to be a matter of very serious concern is the obvious conflict between Sections 2 and 5 of Chapter 726, Section 2 purporting to grant the right to vote to any registered elector residing within the precinct, but Section 5 making it a criminal offense for a person to attempt to vote by signing the poll book if his address is not exactly the same as it was when he registered."
It is a well recognized rule of statutory construction that the legislative history of a measure may be resorted to in an effort to resolve ambiguities and to determine the legislative intent: Sutherland, Statutory Construction, 3rd ed.
§ 5015. When this is done we discover that § 2 of House Bill No. 454 as originally introduced, in so far as pertinent, proposed to amend ORS 250.640 in the following manner:
"* * * Any person desiring to vote shall give his name and residence to the first election clerk, which clerk shall not be of the same political party as the chairman, who shall then announce the name and residence distinctly to the second and third clerks. The person desiring to vote shall then sign his name with indelible pencil or pen in both of the duplicate poll books in the space provided therein for the voter's signature, which will serve to attest to his residence. The first clerk shall inform the voter that his signature is an attestation to the correctness of his residence as it appears in the poll books. A sign shall be posted in plain sight at the polls stating substantially that it is a misdemeanor for a voter to sign his name if his residence address as it appears in the poll books is not his residence address at the time he signs the poll book. " (Emphasis supplied)
If the bill had been enacted in its original form §§ 2 and 5 would have laid down the rule that no elector could vote unless the address alongside his name in the poll book was the address at which he resided at the time he voted. This rule would have required not only persons who move from one precinct to another to reregister, but also that persons who move within their precinct must reregister. Such a rule would have been clearly in conflict with the legislative policy and intent as expressed in ORS 247.170 which provides in part as follows:
"(1) As long as an elector resides in the precinct in which he registers, and votes in at least one election held throughout the county within the biennial election period ending on November 30 following the regular biennial general election, he shall not be required to register again.* * *"
This section recognizes that an elector may change his residence within the precinct without being required to reregister. As above demonstrated, § 2 of the bill was amended during the legislative process to preserve the rule stated in ORS 247.170, but § 5 of the bill was not amended in a corresponding manner.
It is a settled rule of construction that when, in the legislative process, a bill is amended so as to create irreconcilable conflicts within the bill itself, the measure, when adopted as the law, will be construed to give effect to the legislative intent as embodied in the amendments: Sutherland, Statutory Construction, 3rd ed., § 5015; State ex rel. v. Amos, (1918) 76 Fla. 26, 79 So. 433; Covington v. State Tax Commission, (1935) 257 Ky. 84, 77 S.W. (2d) 386; Old South Association v. Boston, (1912) 212 Mass. 299, 99 N.E. 235; Peterson v. Widule, (1914) 157 Wisc. 641, 147 N.W. 966.
As stated in Arnett v. State, (1907) 168 Ind. 180, 80 N.E. 153:
"It is easy to understand how in the hurry of legislation there may be a failure, in connection with the adoption of an amendment, carefully to eliminate provisions which are really intended to be superseded; but it would discredit the intelligence of the lawmaking power to indulge the supposition that in the adoption of an amendment, containing such a definite statement of what was intended as is found in the amendment in question, the General Assembly failed to appreciate the force of such words."
The same rule is reflected in the following statement from State v. Burr, (1907) 16 N.D. 581, 113 N.W. 705:
"* * * From the proceedings in the Senate when section 4 was stricken out and a provision for the election of the first incumbent to the office at the next general election inserted, it becomes apparent that it was the will of the Senate that the office should be filled by election, and not by appointment. This was a positive, unequivocal expression of what was the intent of the Senate on that question when that question alone was under consideration, and must govern notwithstanding seeming contradictory provisions that remained in the bill, undoubtedly through inadvertence. * * *"
The rule to be followed in determining what interpretation must be placed upon § 5 of chapter 726 was expressed by our supreme court in Swift & Co. et al. v. Peterson, (1951) 192 Or. 97, in the following terms:
"The cardinal rule for the construction of a statute is to ascertain from the language thereof the intent of the lawmakers as to what purpose was to be served, or what object was designed to be attained. [Cases cited] We accomplish this with such aid as may be found in the rules of interpretations and legitimate extrinsic sources, always keeping in mind that the legislative intent to enact a valid and constitutional law will be assumed. [Cases cited] When the legislative intent has been ascertained, it should be given effect, even though, in doing so, the literal meaning of the words used is not followed. [Cases cited] In arriving at the legislative intention, it is proper for the court to take into consideration the policy and purposes of the Act, and to consider in that connection whether or not such a policy and purposes will be attained by a literal interpretation of the language used. * * *" (pages 108-109)
It will be recognized after studying chapter 726 that it was the purpose of the legislature in enacting the same to prevent electors from voting who have moved from one precinct to another and fail to reregister. It is equally clear that it was not the intention of the legislature to require persons to reregister who move within their precinct.
In construing the amendments to ORS 250.640 in line with the legislative intention and in compliance with the above referred to rules of statutory construction it should be recognized that
when the elector signs the poll book he is attesting to his residence within the precinct, and not to the accuracy of the street address alongside his name. The warning of the first clerk to the elector likewise should be that he is attesting to the correctness of the assertion that he resides within the precinct.
Turning now to the construction which must be placed upon ORS 250.645, it has been demonstrated above that said language must yield to the legislative intention as embodied in the amendments to § 2 which are set forth in ORS 250.640.
Consistent with this policy is the statement contained in Allen v. Multnomah County, (1946) 179 Or. 548, at page 555:
"* * * The general language of the statute should be limited to the persons and subjects to which it is reasonable to suppose it was intended to apply, especially when a literal interpretation would lead to harmful and absurd consequences. * * *"
This rule is equally applicable to the construction of prohibitions giving rise to criminal sanctions: State v. Buck, (1953) 200 Or. 87.
When ORS 250.645 is so construed the prohibition therein contained must be considered to apply only to persons who have moved into a new precinct, failed to reregister and attempt to go back to their old precinct to vote. So interpreted, said section may be considered to read substantially that no person shall knowingly sign his name in the place provided for the voter's signature in the poll books if his residence is not within the precinct at the time he signs the poll book.
This construction of the Act gives effect to the legislative intention as disclosed by the Senate amendments to § 2 of the bill. This construction is also in harmony with § 17, Article II, of the Oregon Constitution, which provides as follows:
"All qualified electors shall vote in the election precinct in the County where they may reside, for County Officers, and in any County in the State for State Officers, or in any County of a Congressional District in which such electors may reside, for Members of Congress.---"
This constitutional provision makes it mandatory that in voting for county officers electors shall vote in the precinct in which they reside, but grants to all duly qualified and registered electors the right to vote "in any County in the State for State Officers, or in any County of a Congressional District in which such electors may reside, for Members of Congress": Article II, § 17, Oregon Constitution. See ORS 253.210; Carey, The Oregon Constitution, pp. 331, 333 and 337. It will be observed that there will be no serious problem confronting the election judges and clerks when an elector presents himself and in response to proper inquiry replies that his residence is not in the precinct. Such an elector should then be asked if he is duly registered to vote in the precinct in which he resides and if he has obtained from the county clerk the certificate of registration referred to in ORS 253.210. If he either presents this certificate or is placed under oath in the manner referred to in ORS 250.350 to 250.400 and satisfactorily establishes his right to vote, he cannot be denied this fundamental constitutional right. It must be pointed out, however, that the exercise of this constitutional right is conditioned upon his being a "qualified elector" which means duly registered in the precinct in which he resides.
Where a duly registered voter changes his residence within the county during the period in which the voting registers are closed (30 days before election), ORS 247.060 authorizes him to vote in his new precinct for all offices and measures if he first obtains from the county clerk a certificate of his registration and subscribes to an oath before one of the judges of the election board stating his present address and that he has moved since the close of the registration books. This certificate is, of course, subject to challenge under ORS 250.350.
The contention has been urged that §§2 and 5 of chapter 726, supra, conflict with Article II, § 17, Oregon Constitution, for the reason that the same require such voter to sign the poll book even though not a resident of the precinct and thus compel him to violate the penal provision, § 5 (1), in order to exercise his constitutional right to vote guaranteed by Article II, § 17, of the Constitution.
There can be no question but that the legislature, in enacting chapter 726, had in mind the provisions of Article II, § 17, Oregon Constitution. This is shown by the fact that ORS 250.640 (§ 2, chapter 726) expressly recognizes the right to vote under § 17 in the following provision:
"* * * The second and third clerks shall write opposite the elector's name in the poll books kept by them, in the column for ballot number, the number of the ballot to be given to such party and the word 'State' or 'State and District.' if he is qualified to vote for such officers and measures only, and, if proper, the word 'State' or 'State and District,' with pen and ink upon the back of the voter's official ballot. * * * If an elector is permitted to vote whose name does not appear on the voters list furnished by the county clerk, the clerk shall enter his name in the place on the poll books provided for that purpose and place the number of the ballot after his name, but such elector shall also sign the poll books as provided in this section. "
It would be placing a strained and unnatural construction on chapter 726, indeed, to hold that the legislature would make express provision in § 2, chapter 726, for voting by duly registered voters exercising their constitutional right to vote for state and district offices, then turn around in § 5, chapter 726, and make the same act a criminal violation.
When one construction will make a statute void or conflict with the Constitution and another would render it valid, the construction which would render it valid must be adopted. Swift and Co. v. Peterson, supra; Wadsworth v. Brigham et al, 125 Or. 428.
The conclusion is inescapable that § 5, chapter 726, does not and obviously could not apply to duly qualified electors residing and registered in another precinct who are seeking to exercise their constitutional right to vote for state and district offices. This rule was laid down in Leonard v. Ekwall, 124 Or. 351, 362, in the following words:
"When a constitutional provision prevents a statute from applying in certain cases, even where it was apparently intended to apply, the courts will not declare the statute unconstitutional, but will hold that the law was not intended to apply to such cases, on the ground that the courts are bound to presume that the legislature did not intend to violate the Constitution: Northrup v. Hoyt, 31 Or. 524, 529 (49 Pac. 754)."
It would be disregarding the canons of statutory construction laid down by our supreme court in a great number of cases to rule that this statute is unconstitutional.
It will be seen therefore that the criminal provision against voting by unqualified voters (ORS 250.645 (1)) has no application to qualified electors voting for state and district officers under their constitutional rights guaranteed by § 17.
A question will also arise when an elector presents himself to vote and, in answer to appropriate inquiry, replies that the address contained in the poll book is not his present address but that his present address is still one within the same precinct.
While this elector may be challenged in the manner referred to in ORS 250.350 et seq. he may sign the poll book without violating ORS 250.645 (1) since as above demonstrated the elector is only attesting to his residence within the precinct and the prohibition of said section is only against persons signing the poll book who are not lawfully registered and reside outside the precinct.
There is no authority to change the poll books to reflect any elector's present true address unless the inconsistency was caused by an error in the preparation of the poll books. ORS 250.645 (2).