Oregon Advisory Opinions April 11, 1966: OAG 66-50 (April 11, 1966)

OAG 66-50.

Candidate filing for second of two lucrative offices at same election impliedly withdraws first candidacy though not filing formal withdrawal.

In your letter of March 22, 1966, you have given the following statement of facts:

"(a) On March 9, 1966, the Honorable Alice Corbett, Oregon State Senator, filed a declaration of candidacy for the Democratic nomination to the office of State Senator, 12th District, Position No. 8.

"At approximately 5 p.m. on Tuesday, March 15, 1966, Alice Corbett entered the office of the Registrar of Elections for Multnomah County and asked Mr. John D. Weldon, the Registrar, to file her statement of withdrawal of candidacy from the above cited office. Mr. Weldon did notarize her statement of withdrawal but advised her that he could not accept the statement and suggested that she mail it to the Secretary of State, the proper officer to receive such a document.

"After the notarization of Mrs. Corbett's statement of withdrawal, she then submitted to Mr. Weldon a declaration of candidacy for the Democratic nomination to the office of County Commissioner, Multnomah County, Position No. 3. Mr. Weldon accepted this document.

"On March 16, 1966, I received in my office a properly attested document from Senator Corbett, withdrawing her declaration of candidacy for the Democratic nomination to the office of State Senator, 12th District, Position No. 8.

"(b) On March 15, 1966, at approximately 12:15 p.m., Mrs. Janet McLennan appeared in the office of the Portland City Auditor, stating that she wished to file a declaration of candidacy for the office of City Commissioner, Position No. 3. Mrs. McLennan further stated to Mr. Ray Smith, the City Auditor, that she did not in fact wish to file her declaration at that time in that she was on her way to Salem and might possibly decide to file for another position with the Secretary of State.

"Mr. Smith provisionally received her declaration and filing fee, with the understanding that Mrs. McLennan would call the City

Auditor sometime around 4:45 p.m. on the 15th to advise him if she wished to file for the position of City Commissioner. At approximately 4:45 p.m. on March 15, Mrs. McLennan's husband called the City Auditor and told him to go ahead and file his wife's declaration of candidacy for the office of City Commissioner, Position No. 3.

"At approximately 8:20 a.m., March 16, 1966, Mrs. McLennan appeared in the office of the City Auditor and filed an official notice of her withdrawal as a candidate for nomination to the office of City Commissioner, Position No. 3.

"At 5 p.m. on March 15, I notified all candidates assembled in the House Chambers that the filing deadline for declarations and petitions of nomination was closed. However, all individuals who were then in line to file their documents would be served. At approximately 5:10 p.m. Janet McLennan presented a declaration of candidacy for the Democratic nomination to the office of State Senator, 12th District, Position No. 8."

You inquire:

"(1) Is ORS 249.750, which prohibits candidacy for more than one lucrative office, violated if an individual files for two such offices as above stated prior to the filing deadline but after the filing deadline withdraws one of his declarations of candidacy within the three day period provided by ORS 249.280 (1)?

"(2) What consequences follow from the filing of dual candidacies in each of the two circumstances above set forth?

"(3) Do the provisions of ORS 249.750 apply equally to state, county and city offices in those cases when all such offices are 'lucrative'?"

Your facts and your questions raise the basic issue whether the persons about whom you inquire are qualified candidates respectively for the second positions for which they filed. That an individual becomes a candidate immediately upon filing a declaration of candidacy is made clear by that portion of ORS 249.210 reading:

"* * * any registered elector may become a candidate * * * by filing a declaration of candidacy * * *."

"No person shall be a candidate for more than one lucrative office to be filled at the same election. * * *"

ORS 249.280 (1), so far as here material, reads:

"A candidate who desires to withdraw after filing his declaration of candidacy or petition shall state his reasons under oath and file them with the official with whom his declaration or petition of candidacy was filed, not later than the sixty-seventh day prior to the date of the primary election. * * *"

In considering this statute and ORS 249.750 above quoted it is the duty of courts to ascertain the legislative intent expressed therein. ORS 174.010; 82 C.J.S., Statutes, § 321, p. 560; Opinions of the Attorney General, 1962-1964, pp. 474-475. They must be read together to determine whether ORS 249.280 (1) was intended to permit a three-day period for withdrawal from all but one of two or more candidacies filed for before the filing deadline or was intended to permit a withdrawal only from one candidacy. Ascertaining legislative intent under such circumstances involves the rule of pari materia which as stated in Opinions of the Attorney General, 1962-1964, pp. 474-475, means:

"* * * statutes which deal with the same subject matter and have a common purpose, must be read together as one law and harmonized so as to give effect to every word, phrase, sentence and section of all such statutes, if possible. 82 C.J.S., Statutes, § 366, pp. 801-802; State v. Popiel, (1959) 216 Or. 140, 145, 337 P. (2d) 303."

If ORS 249.750 and 249.280 (1) are to be harmonized and the pari materia rule above defined indicates they must be, harmony may be accomplished on the facts you have given us only by ruling that the candidacies first filed for were impliedly withdrawn by the second filings. Such construction prevents the double filing forbidden by ORS 249.750 and at the same time leaves candidates who attempted to double file free to withdraw from the second filings for the full three days provided for in ORS 249.280 (1). Conversely, construing ORS 249.280 (1) to permit unlimited filings providing all but one are withdrawn within three days would effectively make a dead letter of ORS 249.750 and render meaningless its enactment.

The legality of dual candidacies in this state was first considered by this office in Opinions of the Attorney General, 1930-1932, p. 595, where the same individual filed petitions of candidacy for two county offices. The then Attorney General ruled that the county clerk should give the candidate the opportunity "to elect on which of said petitions he [would] stand and to withdraw the other," but that if he did not elect to withdraw one of his two filings the county clerk should place his name on the ballot with respect to the second filing because the second filing would constitute "a withdrawal or abandonment of the first."

In opinion of the Attorney General No. 6054, dated December 16, 1965, this office again had occasion to consider the question of dual candidacies where a candidate for state senator inquired if he could be filed simultaneously for two numbered state senate positions. This

office advised that withdrawal of the first filing was a condition precedent to any subsequent filing.

We turn now to a consideration of what legal consequences follow from the filing of the dual candidacies in each of the two circumstances described in your letter. A strict interpretation of ORS 249.750 would result in ruling out both candidates in each case, since the second filings were contrary to the provision of ORS 249.750 and the first filings were expressly withdrawn. However, I do not believe the Oregon Supreme Court would adopt a strict construction under these circumstances for two reasons: First, the statutes are silent as to the legal consequences flowing from ORS 249.750. Second, a strict construction would impose a penalty in the nature of a forfeiture by depriving both individuals of their opportunity to become candidates for either office. We believe that if this question were presented to our Supreme Court, the court would follow the same legal reasoning this office followed in the Douglas County case (Opinions of the Attorney General, 1930-1932, p. 595) and which the Supreme Court applied in State ex rel. O'Hara v. Appling et al., (1959) 215 Or. 303, 334 P. (2d) 482. In that case the Honorable Mark O. Hatfield, then Secretary of State, having in midterm been elected Governor, did not file a standard resignation under ORS 236.320 before taking the oath as Governor, but instead filed a postdated resignation which was not to become effective until he took the oath as Governor. A test case was thereupon brought in the Supreme Court to settle the question.

The court did not follow the rule laid down in Gibson v. Kay, (1914) 68 Or. 589, 137 P. 864, and State ex rel. Hayden v. Hill, (1947) 181 Or. 585, 184 P. (2d) 366, requiring resignation from the first office before accepting the second office. Instead the Supreme Court ruled that Governor Hatfield had impliedly resigned as Secretary of State by taking the oath for the second office, namely, that of Governor, and that his written postdated resignation was unnecessary.

We believe that in the instant situation the court would follow the rule of the O'Hara case and would hold that the filing of the second candidacies was an implied withdrawal of the first candidacies. We see no difference in principle between implied resignation as followed in the O'Hara case and implied withdrawal. In the O'Hara case the court recognized implied resignation notwithstanding the existence of a resignation statute. In Riley v. Cordell, (1948) 200 Okla. 390, 194 P. (2d) 857, the Oklahoma court recognized implied withdrawal notwithstanding the existence of a withdrawal statute.

Summarizing our conclusions, while ORS 249.750 prohibits the filing of a second candidacy without withdrawing the first candidacy, under the rule followed in Opinions of the Attorney General, 1930-1932, p. 595, and State ex rel. O'Hara v. Appling et al., the filing of the second candidacies would be held to be an implied withdrawal of the first candidacies.

Finally, it is our opinion that the provisions of ORS 249.750 apply equally to state, county and city offices in all cases where both such offices are lucrative. See Opinions of the Attorney General, 1924-1926, p. 139 (county commissioner prohibited from also holding office of justice of the peace); Opinions of the Attorney General, 1924-1926, p. 686 (county assessor cannot also hold office of deputy superintendent of banks); Opinions of the Attorney General, 1942-1944, p. 226 (city attorney prohibited from also holding office of deputy district attorney); Opinions of the Attorney General, 1962-1964, p. 65 (juvenile court counselor cannot also hold office of municipal judge).

NOTE: This opinion was overruled by Oregon Supreme Court in case entitled: Pense v. McCall, 82 Adv Sh. 659, 413 P.(2d) 722. The decision was handed down April 28, 1966.