Oregon Advisory Opinions September 12, 1966: OAG 66-116 (September 12, 1966)

Oregon Attorney General Opinions

1966.

OAG 66-116.

---

39

Where a candidate nominated in the primary for state senator has withdrawn, and the central committee has with all due speed certified a new candidate to the Secretary of State, a Voters' Pamphlet statement on behalf of such candidate may be accepted although received after the normal deadline, where no delay in publication of the pamphlet would result thereby.

You inform me as follows:

On August 29, 1966, you received a statement of withdrawal from a Republican caididate for state senator from Lane County. On August 26, 1966, the Lane County Republican Central Committee first learned of the candidate's intention to withdraw. A meeting of such committee was immediately called for September 1, 1966, the earliest date possible under the notice requirements of ORS 248.100. At the meeting a new candidate was selected to fill the vacancy resulting from the withdrawal. On September 6, 1966, you received a certificate of nomination of such candidate, as provided in ORS 249.665.

You ask whether a statement on behalf of such candidate may be accepted by you for filing and inclusion in the general election Voters' Pamphlet, although received later than the time provided in ORS 255.211. I understand there is adequate time to include such a statement in the pamphlet without inconvenience to your office or that of the State Printer.

Withdrawal of candidacy is provided for in ORS 249.680, as follows:

"Any person who has been nominated at a primary election, or any person who has been nominated to fill a vacancy as provided in ORS 249.650 to 249.670, may cause his name to be withdrawn from nomination not later

---

40

than the sixty-seventh day before the general election by filing with the officer with whom his declaration of candidacy or petition for nomination was filed a writing declining the nomination and stating the reason. * * *"

August 29, 1966, was the seventy-first day before the November general election and within the time provided by statute.

September 1, 1966, the earliest date when the central committee could meet after learning of the impending withdrawal, was the sixty-eighth day before the election. It was therefore impossible to comply with the time limit set by ORS 255.211 which provides in part:

"(1) Not later than the 70th day before the regular biennial general election, the state executive committee or managing officers of any political party or organization having nominated candidates may file with the Secretary of State:

"(c) Portrait cuts of its candidates for election to the office of President and Vice President of the United States, United States Senator, Representative in Congress or any state, county or district office, when the district is composed of one or more counties, and typewritten statements setting forth the reasons why such candidates should be elected."

This statute was enacted as a part of chapter 608, Oregon Laws 1957, which repealed former ORS 255.210. The latter statute contained similar provisions, so far as pertinent here, and originated as chapter 3, § 6, Laws of Oregon 1909, adopted by vote of the people in the general election of 1908.

One of the purposes of the 1909 Act, as stated in its title, was "to provide for furnishing information to the electors * * *."

"* * * 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 policy and purposes will be attained by a literal interpretation of the language used. Banfield v. Schulderman, 137 Or. 167, 178, 296 P. 1066, 298 P. 905 * * *." Allen v. Multnomah County et al., (1946) 179 Or. 548, 554, 173 P. (2d) 475.

We find this situation to be similar to that considered by this office in Opinions of the Attorney General, 1946-1948, pp. 54, 55. In that year the Republican candidate for district attorney of Multnomah County died on September 16, after the time provided by statute for filing Voters' Pamphlet material. It was the opinion of this office that material for the nominee chosen to fill the vacancy resulting therefrom could nevertheless be accepted. The opinion stated as follows:

"The language of the statute clearly limits the time in which such proceedings shall be conducted to the extent considered by the legislature to be necessary to insure the preparation, distribution and receipt by the voters of such pamphlets in sufficient time for examination and consideration before the election.

"The term 'not later' as used in the section, is mandatory, as is also the provision that the state printer shall begin delivering the pamphlets to the secretary of state as soon as possible and shall complete the same within 35 days, likewise the provision that the secretary of state shall complete the mailing on or before the 20th day before said election. Consequently, there appears to be no doubt that the statute is mandatory as to time, and if that were the only matter involved in your quesion the answer would be clear. * * *"

Also see State of Oregon ex rel. Smith v. Appling, (1960) 223 Or. 576, 335 P. (2d) 760, where the Oregon court assumes the statute is mandatory as to time.

Quoting further from Opinions of the Attorney General, 1946-1948, supra:

"* * * However, there are other rules of statutory construction which must be considered in construing the said section.

"In Sutherland, Statutory Construction, 3d Edition, Horack, Vol. 2, § 2802, the author states:

" 'There is no universal rule by which directory provisions may, under all circumstances, be distinguished from those which are mandatory. The intention of the legislature, however, should be controlling and no formalistic rule of grammar or word form should stand in the way of carrying out the legislative intent.

" 'On occasion, some courts have said that language affirmative in form indicates that the statute is directory only, while negative language implies a mandatory provision. In particular instances this may be true, but usually the draftsman is not concerned with nice deductions of this sort. The statute should be construed according to its subject matter and the purpose for which it was enacted. Thus, Lord Campbell said, "It is the duty of the courts of justice to try to get at the real intention of the legislature by carefully attending to the whole scope of the statute to be construed." And Lord Penzance said, "I believe, as far as any rule is concerned, you cannot safely go further than that in each case you must look to the subject matter, consider the importance of the provisions, and the relation of that provision to the general object intended to be secured by the act, and upon a review of the case in that aspect decide whether the enactment is what is called imperative or directory".'

"The author quoted from Upshur v. Baltimore City, 94 Md. 743, 51 Atl. 953, as follows:

" ' "The whole surroundings, the purpose of the enactment, the ends to be accomplished, the consequences that may result from one meaning rather than another, and the cardinal rule that seemingly incongruous provisions shall be made to harmonize rather than conflict, must all be considered in determining whether particular words shall have a mandatory or directory affect ascribed to them." '

---

41

"It is my opinion, based upon your statement, that the provisions as to time are mandatory in their nature, however, such provisions are only incidental to the principal purpose of the statute, which is to afford political parties and independent candidates a means of bringing directly to the attention of the voters individually statements regarding the qualifications of the candidates, as well as to present to the voters arguments or statements regarding the qualifications of opposing candidates. This is for the benefit and protection of the voters and constitutes a matter of public interest and importance, as otherwise many voters would not have the benefit of such information.

"If this purpose may be fully served in the manner stated by you, without risk of postponing the time when the pamphlets would otherwise be available to the voters, it should not be defeated by application of technical rules, and the statement should be filed. However, it would obviously be unfair, under the circumstances, to permit such a statement to contain matter disparaging the opposing candidate. " (Emphasis supplied)

It is our opinion that the same considerations of public policy apply in the case where the candidate has withdrawn after the deadline provided for Voters' Pamphlet material, but yet in time for such material to be included "without risk of postponing the time when the pamphlets would otherwise be available to the voters."

We feel that the intent of the people expressed in the Act of 1909 compels the conclusion, as derived in the earlier opinion of this office cited, that you may accept material for the Voters' Pamphlet regarding such candidate if in so doing the mailing thereof to the voters will not be delayed thereby.