State v. Campbell

• Decision Date: 15 February 1973
• Citation: 265 Or. 82,506 P.2d 163
• Parties: The STATE of Oregon, Respondent, v. Ronald K. CAMPBELL, Appellant. The STATE of Oregon, Respondent, v. Sylvan CAMPF, Appellant. The STATE of Oregon, Respondent, v. Ed COLLINS, Appellant.
• Court: Oregon Supreme Court

Page 163

506 P.2d 163

265 Or. 82

The STATE of Oregon, Respondent, v. Ronald K. CAMPBELL, Appellant.

The STATE of Oregon, Respondent, v. Sylvan CAMPF, Appellant.

The STATE of Oregon, Respondent, v. Ed COLLINS, Appellant.

Supreme Court of Oregon.

Argued and Submitted Nov. 2, 1972.

Decided Feb. 15, 1973.

Ridgway K. Foley, Jr., Portland, argued the cause for appellants. With him on the briefs were Souther, Spaulding, Kinsey, Williamson & Schwabe, Francis E. Harrington and Maurice D. Sussman, Portland.

John H. Clough, Asst. Atty. Gen., Salem, argued the cause for respondent. With him on the brief were Lee Johnson, Atty. Gen., and John W. Osburn, Sol. Gen.

Before O'CONNELL, C.J., and McALLISTER, DENECKE, HOLMAN, HOWELL and BRYSON, JJ.

McALLISTER, Justice.

Petitioners were convicted by the court without a jury of violation of ORS 254.590:

'No person shall give, pay or receive any money or other valuable consideration for securing signatures of electors upon any petition for the initiation of any measure or referendum on any measure or for the recall of any public officer.'

A violation of this statute is a misdemeanor.

In a consolidated appeal the Court of Appeals affirmed the convictions, 498 P.2d 836 (1972), and we granted review. The case involves the proper construction of the statute and its constitutionality. Petitioners Collins and Campf also contend that, as to them, there is no evidence to support a finding of guilt.

Petitioners Collins and Camp sponsored a referendum campaign, in order to secure a popular vote on the cigarette tax measure enacted by the 1971 Legislature. They hired petitioner Campbell to conduct the petition drive, under a contract which provided in part as follows:

'Whereas Sylvan Campf and Ed Collins, hereinafter called 'sponsors', are sponsors of a petition for a referendum * * * and need to get the signatures of more than 26,000 voters on the petition; and

'Ronald K. Campbell, hereinafter called 'canvasser', is willing to recruit a crew to get such signatures and have them to sponsors in time to file them with the Secretary of State * * *

'Canvasser is to recruit persons to circulate petitions and obtain signatures of registered voters. * * * He is to be responsible for collecting signatures throughout the state.

'Canvasser is to secure not less than 25,000 valid signatures * * *.

'Canvasser is to bear all expenses for his office and telephone. He is to pay his employees at least the minimum hourly wage required by law and all wages, taxes thereon and license expense is to be borne by him. * * *

'Canvasser is to receive for his services the sum of Six Thousand Dollars ($6,000.00) from which he shall pay all wages, taxes and other expenses, and if he shall by obtaining sufficient valid signatures be the primary cause of getting the referendum on the ballot shall receive the additional sum of Twenty-Five Hundred Dollars ($2,500.00).'

Campbell was paid at least $7,500.00 pursuant to this agreement.

Campbell hired canvassers to circulate the petitions and obtain signatures. The canvassers were paid by the hour, with additional payment offered for any signatures obtained after their regular working hours. Campbell instructed the canvassers to try to get ten or twelve signatures an hour.

Collins and Campf were indicted jointly for paying money to Campbell 'for Ronald Campbell's securing signatures of electors on a petition for the referral to the people of Chapter 535, Oregon Laws 1971 * * *.' Campbell was indicted for paying money to one Stephen Jordan 'for Stephen Jordan's securing signatures of electors * * *.' All were found guilty by the trial court. ¹ No prior cases have construed ORS 254.590. The Court of Appeals considered the statute quite clear in its application to all three petitioners:

'* * * It clearly forbids paying a person to secure signatures on a petition--precisely what was alleged and proven in the present cases. There is no need to resort to rules of statutory construction when the plain and usual meaning of the words was adequate to warn the defendants of the proscribed activity.' 498 P.2d at 838.

With specific reference to petitioners Campf and Collins, the Court of Appeals said:

'* * * The finding of the trial court (as to their guilt) is supported by the language of the contract, the initial payment, and the subsequent conduct of the parties which indicates that the sponsors intended their payment to Campbell as compensation for his work in obtaining the required number of signatures.' 498 P.2d at 837--838.

The Court of Appeals thus held that the statute prohibits not only the compensation of persons who circulate petitions and directly solicit signatures, but also the payment of compensation to a person who organizes and coordinates a referendum, recall, or initiative campaign or who otherwise works to secure the necessary number of signatures.

Article IV, Section 1, of the Constitution of Oregon provides:

'(2)(a) The people reserve to themselves the initiative power, which is to propose laws and amendments to the Constitution and enact or reject them at an election independently of the Legislative Assembly.

* * *

* * *

'(3)(a) The people reserve to themselves the referendum power, which is to approve or reject at an election any Act, or part thereof, of the Legislative Assembly that does not become effective earlier than 90 days after the end of the session at which the Act is passed.

* * *

* * *

'(4)(b) Initiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith.'

Although the initiative and referendum systems in Oregon date from 1902, the present language is the result of a 1968 amendment to the constitution. The amendment was intended primarily to (1) change the basis for determining the number of signatures required on initiative and referendum petitions and (2) to provide more time for the certification of signatures. At the same time, the initiative and referendum provisions were completely rewritten. From 1902 to 1968 the right of the legislature to legislate in connection with these powers reserved by the people was recognized in the following language:

'* * * Petitions and orders for the initiative and for the referendum shall be filed with the secretary of state, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the act submitting this amendment, until legislation shall be especially provided therefor.' Oregon Const. Art. IV, sec. 1 (repealed May 28, 1968).

Discussing this legislative power, this court said in State ex rel. McPherson v. Snell, 168 Or. 153, 160--161, 121 P.2d 930, 933--934 (1942):

'Section 1 of article IV of the constitution is self-executing, and no enabling act was required to carry it into effect. * * *. Nevertheless, the enactment of legislation to aid or facilitate its operation is not only permissible but seems to be contemplated by the wording of the section. * * *. Any legislation which tends to ensure a fair, intelligent and impartial accomplishment may be said to aid or facilitate the purpose intended by the constitution. Any safeguard against deception and fraud in the exercise of the initiative and referendum powers tends to assure to the electorate the benefits conferred by § 1 of article IV.

'Such legislation, however, must be reasonable, not 'curtailing the right or placing any undue burdens upon its exercise.': * * *. Nor may it 'hamper or render ineffective the power reserved by the people.' * * *.'

In Kays v. McCall, 244 Or. 361, 418 P.2d 511 (1966) we considered the validity of ORS 254.040, which requires the certification of signatures as a prerequisite to filing a petition. It was argued that the statute placed an undue burden on the exercise of the initiative power, because signatures had to be submitted for certification long before the constitutional deadline for filing the petition. In holding that the requirement for certification of signatures prior to filing was reasonable and valid we quoted and relied on the last sentence of the original Article IV, Section 1, dealing with the role of the legislature as quoted above. However, not every legislative provision which tends to prevent fraud in the exercise of the initiative and referendum is necessarily valid. In Woodward v. Barbur, 59 Or. 70, 116 P. 101 (1911) and in State ex rel. Fleck v. Dalles City, 72 Or. 337, 346--347, 143 P. 1127 (1914) it was held that municipal ordinances which restricted the right to sign petitions to registered voters were invalid because in conflict with the constitutional provision extending the right of initiative to the 'legal voters' of municipalities. ² The restriction of the right to registered voters was not saved because the ordinances tended to prevent fraud by requiring the comparison of signatures on petitions with those in the registration book.

The present language of subsection (4)(b), providing that initiative and referendum measures are to be submitted 'as provided in this section and by law not inconsistent therewith,' certainly permits no greater legislative interference with the people's powers of initiative and referendum than did the earlier language. Whether it further restricts the legislative power to legislate in connection with initiative and referendum need not be decided at this time. The explanation of the 1968 amendment in the official Voters' Pamphlet indicates that there was no intention in the drafting of the amendment to change the role of the legislature in connection with the exercise by the people of the initiative and referendum. 'These repealed sections,' the voters were told, 'are purely 'clean-up' of the wording and in no way do they diminish the power of the people to initiate or refer measures.' Official Voters' Pamphlet, Primary Election, May 28, 1968, p. 8. Since neither party has suggested that the 1968 amendment is...