Oregon Advisory Opinions April 17, 1956: OAG 56-20 (April 17, 1956)
Collection: Oregon Attorney General Opinions
Docket: OAG 56-20
Date: April 17, 1956
Advisory Opinion Text
OAG 56-20.
State Representative
This is to acknowledge your letter of April 2, 1956, requesting our opinion as to the legality of the filing of Walter Norblad for candidacy for the Republican nomination for Congress from the First Congressional District. The facts of this case as disclosed by the records of the office of the Secretary of State are as follows:
On March 1, 1956, a receipt was issued by the Secretary of State, Elections Division, No. 25634, showing that Mr. Walter Norblad made a payment of $100 to cover the cost of filing for candidacy for the Republican nomination of Governor. On March 7, 1956, a credit memorandum was issued by this office, No. 25745, stating "To correct receipt No. 25634 dated March 1, 1956". This memorandum was in the amount of $100. On the same day, that is March 7, 1956, a receipt was issued by the Secretary of State, No. 25764, to Mr. Walter Norblad in the amount of $200. This receipt designates two items, (1) $100 for filing of candidacy of Walter Norblad for Republican nomination for Congress from the First District, and (2) $100 for one page in the Primary Election Voters' Pamphlet. There is nothing on the face of the above documents, which are a part of the permanent record of the office of the Secretary of State, to show the manner in which Mr. Norblad made payment under receipt No. 25764, issued March 7, 1956. But I believe there is no dispute, and as stated in your letter, that at the time this receipt was issued, Mr. Norblad made an additional payment of $100 and the $100 filing fee paid under receipt No. 25634 was transferred to and became a part of the payment recognized in the receipt for $200, that is receipt No. 25764. There is nothing appearing upon the records of the office of the Secretary of State to show the manner in which the payment of $100 made on March 7, 1956, and the credit of $100 made under the transfer from receipt No. 25634, issued March 1, 1956, was applied, that is, whether the $100 paid at the time of the issuance of the receipt was for the filing fee for Republican nomination for Congress from the First Congressional District or whether such payment was to cover the cost of the page in the Voters' Pamphlet.
At the very outset it must be recognized that we are confronted with two presumptions: (1) That public officers are presumed to carry out their duties according to law. 67 Or. 214; ORS 41.360 (15). (2) That generally speaking in the absence of a showing of fraud or unauthorized alteration, a public record imports absolute verity and is presumed to be correct and cannot be collaterally attacked. 76 C.J.S. 131.
In view of the record as it now stands it becomes a question of whether or not there is sufficient evidence to overcome the above presumptions showing a non-compliance of the statutes governing the filing for nomination to become candidate to primary elections.
ORS 249.270 in part provides:
"The filing fees required of candidates to be paid at the time of filing declarations shall be as follows :" (Emphasis supplied)
ORS 249.280 provides in part:
"Upon the proper filing of notice of candidacy accompanied by the required fee, the candidacy shall be complete. * * *" (Emphasis supplied)
It is apparent from the plain language of the statute that the required filing fees must be paid at the time of the filing of the declaration; otherwise such filing is incomplete. I believe that it is reasonable to assume under this plain language that it was the legislative intention that candidates filing for nomination must pay the filing fees at the time of filing in order to complete such filing. An incomplete filing would be no filing at all. Opinions of the Attorney General, 1938-1940, p. 28. See State v. Brodigan, 37 Nev. 458, 142 P. 520, cited in the above opinion. See Patton v. Withycombe, 81 Or. 210, 146 A.L.R. 600.
This proposition is further substantiated by the rule that "The secretary of state is a ministerial officer and has no right to waive any constitutional or statutory requirements." State ex rel. Snell, 155 Or. 300, 309, and 168 Or. 153, 163; Opinions of the Attorney General, 1950-1952, p. 349.
Although it is a generally recognized rule of law that a public officer cannot refund moneys paid to him in his official capacity without express legislative authority (Opinions of the Attorney General, 1938-1940, p. 28), and the fact that the transfer of funds under receipt No. 25745 may have all the essential elements of attempted refund on the part of the Secretary of State, upon which we express no opinion, it is apparent from the facts that this office cannot rule that there was no payment by Mr. Walter Norblad of the $100 filing fee for candidacy for the Republican nomination for Congress from the First Congressional District. Assuming, but not deciding, that there was no authority in law for the Secretary of State to make the transfer in question, the records of his office clearly show that there was a payment of $100 on March 7, 1956, receipt No. 25764, which, under the circumstances, would be applied to the filing for nomination and not for payment of a page in the Voters' Pamphlet. This result arises from the fact that the Secretary of State would not have authority to accept a fee for a page in the Voters' Pamphlet from a person who had not qualified as a candidate for nomination. It may be assumed that the courts would say, in view of the fact that there
is nothing in the record to disclose otherwise, that the fee paid was for filing for nomination and that the attempted transfer would be applicable to the page in the Voters' Pamphlet.
It is my opinion therefore that the legality of Mr. Norblad's filing as a candidate for the Republican nomination for Representative in Congress from the First District would, if challenged, be upheld by the courts of this state.