Oregon Advisory Opinions September 01, 1960: OAG 60-113 (September 1, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-113
Date: Sept. 1, 1960
Advisory Opinion Text
OAG 60-113.
Secretary of State
You request our opinion in connection with the following facts:
In the Multnomah County primary election for coroner, there were no candidates' names printed on the Republican ballot. Arthur O'Toole received the highest number of write-in votes, but in opinion of the Attorney General No. 4973, dated August 16, 1960, this office ruled that he was ineligible because he failed to win his own party's nomination. The runner-up was Earl Smith who received the Democratic Party's highest number of votes. The third write-in candidate, Hugh V. Lacey, Jr., received the least number of votes. The Registrar of Elections, John D. Weldon, certified Mr. Lacey as the Republican nominee for coroner. This certification was erroneous according to our opinion No. 4973.
You ask:
"(1) Should the Secretary of State take official cognizance of the erroneous certification of Mr. Lacey?
"(2) What direction should this office issue to Mr. John D. Weldon in order that this error may be corrected?"
The Secretary of State is the chief election officer of the state with the duty to maintain uniformity in the operation of the election laws. ORS 246.110. He must prepare and distribute to each county clerk written directives and instructions regarding elections. ORS 246.120. He has the duty of assisting and advising each county clerk with regard to the application, operation and interpretation of the "election laws as they apply to elections, registration of electors and voting procedures which by law are under the direction and control of the county clerk." ORS 246.130.
Based upon the above statutes it is our opinion that the Secretary of State should take official cognizance of the erroneous certification of Mr. Lacey as the Republican nominee for coroner where the matter has come to his attention.
In order to answer your second question as to "what direction" should be issued by your office to rectify the error, it is necessary to examine the specific duties of the registrar in connection with the certification of the names of candidates nominated. ORS 249.410 (4) provides:
"Abstracts of votes for county and precinct offices shall be on separate sheets for each major political party. The county clerk shall immediately certify the nominations and elections for each party and enter in the register of nominations the name of each of the candidates having the highest number of votes for nomination for or election to county and precinct offices . The county clerk shall mail a notice to each candidate nominated or elected." (Emphasis supplied)
The duty to certify the name of the candidate with the highest number of votes is ministerial. Opinion of the Attorney General No. 4115, dated July 11, 1958. This duty is further circumscribed by the law granting such authority. This principle is well stated in United States v. Jones, (C.A. 9th, 1949) 176 F. (2d) 278, at p. 281:
"It is, no doubt, true---to use a phrase which has become trite through constant use---that in assaying the acts of public officers, 'the mode is the measure of the power.' This means that a public officer, in
exercising powers conferred upon him by statute and regulation, is bound to follow the mode or manner prescribed. * * *"
In Fredericks v. Gladden, (1957) 211 Or. 312, 315 P. (2d) 1010, a convict was prematurely released from the penitentiary by reason of an incorrect computation of "good time" to which he was entitled. Relying upon a certificate of the warden the Governor signed the release. The court held that the warden had no authority to certify that the convict was entitled to be released at the time the certificate was prepared and that the certificate was illegal and void .
In State ex rel. Peterson v. Martin, (1947) 180 Or. 459, 176 P. (2d) 636, a milk dealer received a certificate of license extending the area in which he could sell milk for human consumption. The statute required the Director of the Department of Agriculture to approve the issuance of a license although the ministerial act of issuing it could be delegated to a subordinate. Contrary to the instructions of the director and by inadvertence a subordinate issued the license. The court held that the issuance of the license was a void act and a nullity with no legal effect. Being a void act no formal proceeding to revoke it was necessary. See State v. Charlesworth, (1933) 141 Or. 290, 16 P. (2d) 1116, 17 P. (2d) 1104.
While we have not discovered any election cases precisely on point, the election cases involving related facts support the principle of the above cases.
In State ex rel. Hitchcock v. Till, (1926) 50 S. Dak. 346, 210 N.W. 157, a candidate from one county was the sole candidate for state senator for that county, but he failed to perfect his candidacy by filing a declaration provided for in the statute. Even if he had perfected his candidacy, his name would not have been placed on the primary ballot since there was no opposition by a minority candidate. After the primary election in which his name was properly omitted from the ballot he received a certificate of nomination. The court pointed out that the canvassing board had no duty whatsoever to perform and no jurisdiction over the candidate. The certificate was a nullity. The court indicated that the canvassing board had jurisdiction to issue a certificate of nomination to a candidate in the sole instance where the vote entitled a candidate to a certificate. It could not give the certificate to a candidate whose name had not been voted on at the primary election. The certificate conferred no authority on the county clerk to regard the holder as a candidate and the certificate was void.
State of Oregon v. McKinnon, (1880) 8 Or. 493, concerned an election where three candidates received the highest and an equal number of votes for two available offices. Upon the withdrawal of one of the candidates, which withdrawal was held ineffectual by the court, certificates of election were issued to the two remaining candidates. Since the statute required that the matter be decided by lot the court held that the certificates of election were illegal and void.
In the instant case it appears of record that the registrar certified Mr. Lacey's nomination where the abstract of votes showed that the highest number of votes was received by Mr. O'Toole. Since Mr. O'Toole could not be certified as the Republican nominee because of his failure to win his own party's nomination under ORS 249.420 there was a vacancy. Therefore there was no Republican nominee for coroner and the registrar had no duty or authority to certify the name of anyone. It follows that the certificate was a nullity and may be completely disregarded.
Accordingly, it is our opinion that you should advise the registrar that his certification is a nullity and he may expunge the matter from his records.