Oregon Advisory Opinions April 04, 1960: OAG 60-42 (April 4, 1960)

OAG 60-42.

You have requested our opinion as

to whether the personal check of a candidate for nomination given to the Secretary of State for payment of fees under ORS 255.051 just before the filing deadline, along with portrait cuts and a statement for inclusion in the primary election Voters' Pamphlet, constitutes a complete filing when the check is returned for "not sufficient funds" 13 days after the filing deadline.

ORS 255.031 provides that the candidate for nomination to certain offices may file a portrait cut and a statement for inclusion in the Voters' Pamphlet "not later than the seventieth day before the primary election." ORS 255.051 provides that each candidate "shall pay to the Secretary of State at the time of filing portrait cuts and statements under ORS 255.031" a fee in accordance with a schedule set out thereafter.

ORS 246.021 requires that such statements and portrait cuts "be delivered to and actually received at the office of the designated official not later than 5 p.m. of the last day permitted by law for such filing."

It is clear from the language of ORS 255.051 that the statute requires the fee for space in the Voters' Pamphlet be paid at the time of filing the portrait cuts and statement. Patton v. Withycombe, 81 Or. 210, 213; Opinions of the Attorney General, 1954-1956, pp. 200-201. Furthermore, there can be no question of the power of the Legislative Assembly to prescribe a fee for space in the Voters' Pamphlet in order to defray the expense incurred in providing the service. State ex rel. v. Dunbar, 53 Or. 45, 49-50; Wright v. Beveridge, 120 Or. 244.

The giving of a check does not constitute payment. Joppa v. Clark Commission Co., 132 Or. 21, 28:

"When a debtor gives his check for the amount of his indebtedness the prima facie presumption arises that the check is taken merely as conditional, not absolute, payment. [citing cases]"

In Fletcher v. Ray, (Ark. 1952) 250 S.W. (2d) 734, it was held that where a candidate's check taken in payment of a filing fee was dishonored after the filing fee deadline, the filing fee was not paid within the time required by law. The court stated, at page 736, as follows:

"In the case at bar the Statute provides as to when the fee shall be paid and it is doubtful that the Committee could extend the time by accepting a check as payment when the check is, as a matter of fact, no good. But, be that as it may, the preponderance of the evidence here is that the check was not unconditionally accepted as payment. The Secretary of the Committee so testified and there is no substantial evidence to the contrary. When a check is taken in payment of a debt, the debt is considered paid as of the date of the receipt of the check provided the check is paid in due course.

"In 70 C.J.S., Payment, § 24, pages 234-235-236, it is stated: 'The original debt is not paid or discharged unless, and until, the check itself is actually paid on due presentment, or, it is sometimes stated, until it is honored or accepted by the drawee; * * *

"'On the other hand, where a check delivered to a creditor, although without any agreement or consent on his part to receive it as absolute payment, is in fact paid in due course, the debt is discharged pro tanto, as of the time at which the check was received; but a payment other than in due course does not extinguish the debt. A check is accordingly often referred to as conditional payment, the condition being its collectability from the bank on which it is drawn. On fulfillment of the condition by payment of the check on presentation, the payment, which was previously conditional, becomes absolute.' In the case at bar the check was dishonored. Therefore, the ballot fee was not paid by a check of any date."

It follows that there was not a proper filing where there was no payment of the filing fee prior to the filing deadline. As stated in Jacobsen v. Jeffries, 47 P. (2d) 892, at p. 893:

"Leaving a paper with a filing officer, a fee for the filing of which is by the statute required to be paid in advance, is not a filing. It is the duty of the officer to collect and pay into the proper treasury the fee provided by law before the paper is filed. Should such officer inadvertently or otherwise file a paper for which a fee is required to be paid, he is forthwith bound to account for such fee whether or not he collected the fee at the time the paper was left for filing.

"'Under our law the filing of the record consists of two acts, one of which is payment of the fee, and the other of which is delivering the record to the clerk. Neither act standing alone is a filing, or a half filing, or of any avail as a filing.' Gee v. Smith, 52 Utah, 602, 176 P. 620, 621."

It is accordingly our opinion that where the check of a candidate for nomination given to the Secretary of State just before the filing deadline, along with portrait cuts and statement for inclusion in the primary election Voters' Pamphlet, is returned for "not sufficient funds" 13 days after the filing deadline, a complete filing has not been made.