Pense v. McCall
| Citation | 243 Or. 383,413 P.2d 722 |
| Parties | Clair E. PENSE, Plaintiff, v. Thomas L. McCALL, Secretary of State of the State of Oregon, and John D. Weldon, Registrar of Elections for Multnomah County, Oergon, Defendants, Alice Corbett, Intervenor. |
| Decision Date | 28 April 1966 |
| Court | Supreme Court of Oregon |
R. Vernon Cook, Gresham, argued the cause and filed a brief for plaintiff.
Louis S. Bonney, Asst. Atty. Gen. of State of Oregon, Salem, argued the cause for defendant Thomas L. McCall. With him on the brief was Robert Y. Thornton, Atty. Gen.
George Van Hoomissen, Dist. Atty. for Multnomah County, Portland, and Willis A. West, Chief Civil Deputy Dist. Atty., filed a brief for defendant John D. Weldon.
Pat Dooley, Portland, argued the cause and filed a brief for the intervenor.
Before PERRY, P.J., and SLOAN, GOODWIN, DENECKE, HOLMAN, LUSK, and SCHWAB, JJ.
This is an original proceeding in mandamus in which the plaintiff challenges the right of Alice Corbett to be a candidate for the Democratic nomination for the office of County Commissioner of Multnomah County, Position No. 3, at the primary election to be held on May 24, 1966.
The plaintiff is a resident of and registered voter in Multnomah County and a candidate for the same office sought by Mrs. Corbett. The defendants are Thomas L. McCall, Secretary of State and John D. Weldon, Registrar of Elections for Multnomah County, who performs all the functions of the county clerk of that county in connection with administering the election laws: ORS 246.300. Mrs. Corbett was permitted to intervene.
An alternative writ was issued to which the defendants demurred. The intervenor filed an answer containing an affirmative defense to which the plaintiff demurred. The relief prayed for is a peremptory writ commanding the defendant Registrar of Elections not to include Mrs. Corbett's name as a candidate for county commissioner on the sample and official ballots to be prepared and distributed for the May 24, 1966, primary election, and commanding the defendant Secretary of State not to include in the Voters' Pamphlet material submitted by Mrs. Corbett. The facts are agreed upon and the question for decision is purely one of law.
The facts are as follows: The last day for filing a declaration of candidacy for a party nomination at the forthcoming primary election was March 15, 1966: ORS 249.260. On March 9 Mrs. Corbett filed with the office of Secretary of State her declaration of candidacy for the Democratic nomination for the office of State Senator, Multnomah County, District 12, Position No. 8. At about five p.m. on March 15, 1966, Mrs. Corbett filed her declaration of candidacy for the Democratic nomination for the office of County Commissioner of Multnomah County with the office of the Multnomah County Registrar of Elections. No formal withdrawal of her first filing was made by Mrs. Corbett until the next day, March 16.
Plaintiff contends that the second filing was void as in contravention of ORS 249.750, which reads:
On behalf of the defendants it is argued that Mrs. Corbett did not violate this section because her declaration of candidacy for the office of Multnomah County Commissioner was an implied withdrawal of her declaration of candidacy for the office of State Senator. They rely, principally, on State ex rel. O'Hara v. Appling, 215 Or. 303, 334 P.2d 482, and Riley v. Cordell, 200 Okl. 390, 194 P.2d 857. In the Appling case we held, in accordance with the great weight of authority, that when Governor Hatfield, having been elected governor during the middle of his term as secretary of state, took the oath of office as governor, he impliedly resigned the former office. Riley v. Cordell applied that doctrine to candidacies for nomination for two incompatible offices. It appears that Riley, who was at the time a justice of the Supreme Court of Oklahoma, filed for the Democratic nomination for that office and the next day filed for the Democratic nomination for the United States Senate. Riley contended he could lawfully be a candidate for both offices at the same election. There was no statute prohibiting such multiple candidacies, but the court held that they were contrary to the public policy of Oklahoma, and that by filing for the nomination for United States Senator Riley had impliedly withdrawn his candidacy for the Supreme Court nomination. The rule of resignation of one office by acceptance of another was said to be applicable.
Whether the rule of implied resignation of an office might properly be extended to withdrawal of a candidacy were there no statute to prevent it, is a question we do not now decide, for that rule cannot be applied to the present case without coming directly in conflict with our primary election law. As hereinafter shown, that law provides an exclusive method for withdrawal of a candidacy. State ex rel. O'Hara v. Appling, supra, even if otherwise authority for the position of the defendants, is not in point, because no exclusive method of resignation by the Secretary of State was prescribed by statute.
ORS 249.210 provides that an elector may become a candidate for nomination by a political party by filing a declaration of candidacy with the proper official and that such filing 'shall be conclusive evidence that the registered elector is a candidate for nomination or election 1 by his party.' ORS 249.221(1) prescribes what a declaration of candidacy shall contain, including:
'(e) A statement that the candidate is willing to accept the nomination or election.
'(f) A statement that the candidate will qualify if elected.'
ORS 249.280(1) reads:
As all declarations of candidacy must be filed not later than 70 days prior to the date of the primary election: ORS 249.260, a candidate desiring to withdraw must do so under the foregoing section not later than three days after the last day for filing. The candidate is required to state his reasons for withdrawal under oath and file them with the official with whom his declaration was filed--in the case of a candidacy for nomination to the State Senate, with the Secretary of State, and in that of a candidacy for Multnomah County Commissioner, with the Registrar of Elections. If a candidate does not withdraw, the proper official must cause his name to be printed on the official ballot.
ORS 249.350 provides that the Secretary of State shall, not later than the 61st day before any primary election, furnish to each county clerk a statement showing the state, district or city offices for which candidates are to be nominated and the names and other information concerning all candidates for nominations.
ORS 249.352 requires the county clerk to arrange upon the ballot the names of candidates which have been filed with him and those which have been certified to him by the Secretary of State.
ORS 249.354(1)(c) provides that the ballot shall state:
'The names of all candidates for nomination for offices to be filled at the primary election whose petitions for nomination or declarations of candidacy have been made and filed as provided by the primary election law and who have not died, Withdrawn or become disqualified.' (Italics added.)
Under accepted rules of statutory construction, when the same word or phrase is used in different parts of a statute it will be presumed to be used in the same sense throughout when applied to the same subject matter, in the absence of anything in the statute clearly indicating a contrary intent: School District No. 17 of Sherman County v. Powell, 203 Or. 168, 185, 279 P.2d 492; Holman Tfr. Co. et al. v. City of Portland et al., 196 Or. 551, 563, 249 P.2d 175, 250 P.2d 929; In re Norton's Estate, 177 Or. 342, 347, 162 P.2d 379, 161 A.L.R. 439; State ex rel. City of Eugene v. Keeney, 123 Or. 508, 512, 262 P. 943; James et al. v. City of Newberg et al., 101 Or. 616, 619, 201 P. 212.
In view of this rule there can be no doubt whatever that under ORS 249.280(1) the proper officers are directed to cause to be printed upon the official ballot the name of a candidate who has not withdrawn in the manner and mode prescribed by that section, and that the Registrar of Elections of Multnomah County is charged by ORS 249.354 with the same duty in arranging the names of candidates on the ballot. No reason has been suggested in argument, and none occurs to us, why it should be thought that the word 'withdraw' in the second sentence of ORS 249.280(1) and the word 'withdrawn' in ORS 249.354 were intended to be used in a different sense than the sense clearly expressed in the first sentence of ORS 249.280(1).
We do not have the benefit of any legislative history as an aid to construction. It would seem, however, that the requirements respecting the method of withdrawal of a candidacy were adopted, in part at least, to facilitate an orderly administration of the election laws, so that officials concerned...
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