Lafferty v. Newbry

• Decision Date: 30 March 1954
• Citation: 268 P.2d 589,200 Or. 685
• Parties: LAFFERTY v. NEWBRY.
• Court: Oregon Supreme Court

Page 589

268 P.2d 589

200 Or. 685

LAFFERTY v. NEWBRY.

Supreme Court of Oregon, En Banc.

March 30, 1954.

A. W. Lafferty, in propria persona, Portland argued the cause and filed a brief for petitioner.

E. G. Foxley, Deputy Atty. Gen., argued the cause for respondent. With him on the brief was Robert Y. Thornton, Atty. Gen.

LATOURETTE, Chief Justice.

Petitioner A. W. Lafferty, candidate for Congress from the Third Congressional District, Multnomah county, submitted to the respondent Secretary of State material for insertion in the voters' pamphlet, accompanied by the necessary fees. That official refused to accept the proffered material, whereupon petitioner filed mandamus in this court to compel him to do so.

The material submitted by petitioner was a map of western Oregon wherein was included in black squares the Oregon and California railroad revested lands, accompanied by the wording: 'To Save O & C Vote for Me! A. W. Lafferty. Each Black Square is 640 Acres. 2.5 Million Acres--O & C--Worth Billions.' This material was offered to be inserted on one page of the pamphlet. For the second page there was submitted a picture of a statue of Sacajawea, with child on back, pointing to the map, with the accompanying wording: 'Yonder is Oregon--Sacajawea A Fit Mother For Her Own Child. Electors: To Save O & C Vote for Me! truly yours, A. W. Lafferty, Fenton Building, Portland 4, Oregon.' It will be remembered that Sacajawea was the Indian woman who accompanied the Lewis and Clark Expedition as a guide and interpreter across the plains and over the mountains into Oregon in 1804-1806.

ORS 255.030(1) provides:

'Any candidate * * * may file with the Secretary of State, for publication * * * with his portrait cut, if he wishes, printed or typewritten statements, * * * over his or their signatures, stating the reasons why he should be nominated.'

ORS 255.040 provides as follows:

'(1) The Secretary of State shall reject any statement or other matter favoring or opposing any candidate and offered for filing and printing in the voters' pamphlet, which, in his opinion contains any obscene, vulgar, profane, scandalous, libelous or defamatory matter, or any language which in any way incites, counsels, promotes or advocates hatred, abuse, violence or hostility toward, or which tends to cast ridicule or shame upon any person or group of persons by reason of race, color, religion or manner of worship, or any language or matter the circulation of which through the mails is prohibited by Congress. Such statements shall not be filed or printed in the voters' pamphlet. Nor shall any candidate be entitled to display in the pamphlet any cut showing the uniform or insignia of any organization which advocates or teaches racial or religious intolerance.'

The law further provides that after such rejection the person submitting such statement may appeal to a board of review, consisting of the governor, attorney general and superintendent of public instruction, the decision of which shall be final.

The decision of this case rests largely on the meaning of the word 'statement.' Throughout the act the words 'statement' and 'argument' are used interchangeably. We adopt the definition of 'statement' as submitted by the attorney general, representing the respondent, taken from Webster's New International Dictionary, 2d Ed., Unabridged, as follows:

'Act of stating, reciting, or presenting, orally or on paper; as, the statement of a case.'

This definition is broad and includes the act of presenting matter on paper, whether in words, pictures, or drawings for the purpose of carrying home to the voters the message of the candidate. It is not limited to words alone as is contended for by the attorney general. It is well known that often, even in this court, attorneys, in making their opening statements and arguments, indulge in the use of illustrations as a part of the same. One need go no further than the opinions of this court to find maps, pictures and drawings included in the statement of the case.

In the past the secretary of state has interpreted the law as authorizing one seeking office to insert in the voters' pamphlet maps and pictures. It is axiomatic that the construction a department places on a law over a period of time, although not conclusive, is persuasive on the courts. For instance, as far back as 1913, there was contained in the voters' pamphlet, with reference to a bill to provide funds for repairs to certain buildings at the University of Oregon, pictures of various buildings on the campus of the university, some of which were not included within the bill itself. In the voters' pamphlet of 1914, there were included pictures of buildings and grounds of the Southern Oregon State Normal School and Eastern Oregon State Normal School in an attempt to persuade the voters to levy taxes for the construction, support and maintenance of such institutions. In the voters' pamphlet of 1917 there was inserted a map of the state of Oregon pointing out the several roads and highways designated in a bill to raise money under a bonding act for the construction of such roads. In 1952, petitioner, who was then running for Congress, submitted the identical map of western Oregon, now in controversy, to the Secretary of State for publication in the voters' pamphlet, which was then accepted by said officer.

It might be argued that there is justification for the use of pictures and maps in the voters' pamphlet where measures are to be voted on rather than candidates since the initiative statute refers to 'arguments' rather that 'statements.' However, as hereinbefore pointed out, the pamphlet law concerning candidates employs the words 'statements' and 'arguments' interchangeably, so that in reality there is no distinction between the two acts in the respects mentioned.

It is argued by the attorney general that the statute concerning 'statements' is not free from doubt and depends upon construction and therefore the respondent has a discretion to determine the appropriateness of the submitted matter which cannot be controlled by mandamus. This suggested rule has no application to the case at bar.

ORS 255.030 is free from doubt and no discretion, express or implied, reposes in respondent. The only authority granted to the Secretary of State, so far as rejecting matter for the voters' pamphlet submitted by a candidate is concerned, is measured by the language, 'obscene, vulgar, profane,' etc., set out in ORS 255.040(1) aforesaid. Expressio unius est exclusio alterius.

By embracing respondent's theory the Secretary of State would be in a position to exercise a tremendous political power, not contemplated or envisaged by the legislature, as the only right of appeal under the statute is granted where the secretary of state rejects the submitted statement on the ground of obscenity, etc.

It is thus seen that to grant him the power claimed would leave a candidate without a remedy where rejection is based on grounds other than those mentioned in ORS 255.040(1). He would have no right of appeal, nor would mandamus be available to him. If that public official were so minded and had discretion in the matter, he could put a stumbling block in the way of a candidate to satisfy his own personal purposes and perhaps that of his party, which would subvert the free flow of political discussion so zealously cherished and guarded by the American electorate.

This act should be liberally construed. What to a candidate might seem pertinent and germane might not seem so to the Secretary of State. The voters' pamphlet is the poor man's avenue to reach all the registered voters. A candidate who pays the requisite fees and does not offend the provisions of ORS 255.040(1) should not be placed at the mercy or whims of a public official.

ORS 255.060(3) designates the size of the pages of the pamphlets and of the type to be used. We do not intimate that, where the size of the printed matter submitted does not correspond with the size designated by the statute, the latter shall not control. This is merely a matter of mechanics and the Secretary of State must necessarily follow the statute.

We hold that the statement submitted by the petitioner should be published in the voters' pamphlet, and a peremptory writ will issue directing respondent to act in conformity with this opinion.

ROSSMAN, Justice (specially concurring).

The photograph which Mr. Lafferty wishes to have included in his space in the Voters' Pamphlet is one of the statue of Sacajawea which stands in City Park, Portland. The statue as a work of art has won wide recognition. Obviously, there is nothing offensive about the picture. The candidate deems the picture material to the argument which he wishes to make to the voters. A proverb says that 'One picture is worth a thousand words.'

The sole objection to the publication of the picture that has been suggested is that the picture is not relevant to the arguments which the candidate offers in support of his candidacy. One of the dissenting opinions holds that the Secretary of State has discretion in determining the relevancy of material which is offered to him by candidates for publication in the Voters' Pamphlet and that he properly ruled that the photograph of the Sacajawea statue is irrelevant. That opinion says: 'I am also of the opinion that the matter involved is not substantial or of sufficient importance * * *. The argument supporting petitioner's case was irrevelant and frivolous. * * * It is no more difficult for this court to determine 'relevance' in this case than in any other legal controversy.' No argument is needed to make one realize that if the Secretary of State can reject a map, photograph or drawing from the Voters' Pamphlet, under a belief that it is 'irrelevant', he can do the same with the written statement which the candidate offers. The question thereupon presents itself as to whether or not the legislature has...