Columbia River Salmon & Tuna Packers Ass'n v. Appling & Make Steelhead a Game Fish, Inc.

375 P.2d 71, 232 Or. 230, 1962 Ore. LEXIS 421

• Court: Oregon Supreme Court
• Decided: October 12, 1962
• Status: Published

Opinions

GOODWIN, J.

This is an appeal by “Make Steelhead a Game Fish, Inc.” and others from a decree of the circuit court the effect of which is to strike from the ballot a measure to control commercial fishing.

The issue is whether those signatures which were obtained on petitions bearing a defective ballot title can be counted with signatures on petitions bearing the corrected ballot title to make up the total number of signatures needed to comply with Oregon Constitution, Art IV, § 1. It is conceded that without the signatures obtained on petition forms which bore the defective ballot title there -would be insufficient signatures to comply with Article IV, § 1. The appellants seek to have the measure placed on the next general election ballot despite the failure to obtain the required number of signatures after the ballot title was corrected.

The specific question grows out of our holding, in Columbia River Packers v. Thornton, 230 Or 472, 371 P2d 975, that the ballot title prepared by the attorney general did not comply with OPS 254.070 and 254.080. The defective title was carried on the early petitions to which more than half of the tendered signatures were appended. That title had advised potential petitioners that the purpose of the measure was to restrict commercial fishing for steel-head and to declare steelhead a game fish. The title certified by this court to the Secretary of State for use on the ballot states that the purpose of the measure is to restrict all commercial fishing on the Columbia Eiver. (The proposed measure incidentally declares steelhead a game fish. It then virtually outlaws commercial fishing in the Columbia River during the summer months when a substantial number of salmon as well as steelhead are to be found in that stream.)

By statute since 1921, the species of trout commonly called steelhead have been designated as game fish. The manner of taking them likewise has been the subject of statutory control. ('See Oregon Laws 1921, eh 153). It therefore appears that the ballot title preferred by “Make Steelhead a Game Fish, Inc.” did not fairly disclose the purpose of the proposed measure. It was not necessary to decide in Columbia River Packers v. Thornton, supra, whether such nondisclosure was intended. We held merely that the title was insufficient. A ballot title which invited voters to “restrict commercial fishing for steelhead” would not advise voters accurately concerning the matter to be voted upon. For an earlier case dealing with a related problem, see Columbia River Packers v. Thornton, 215 Or 1, 325 P2d 812.

The appellants now urge that even if the first ballot title was defective it should not follow that petitions subscribed while bearing that title must be rejected in computing the number of signatures needed to qualify the measure for the ballot.

ORS 254.070 requires the ballot title to appear on initiative petitions. The only logical purpose of such a requirement is to advise potential petitioners what the measure is about. Boyd v. Jordan, 1 Cal2d 468, 35 P2d 533. If it is important that the ultimate voters be apprised of the question upon which they are asked to vote, and no one disputes that it is, then it is also important that petitions seeking to put a matter on the ballot apprise the petitioners of the true issues involved. There is some support for the contrary view, but to encourage petitioners to masquerade under misleading captions would open the initiative process to abuse. Such a rule is demanded neither by statute nor by reason.

The appellants contend that if ballot titles on initiative petitions are now to be held to the same high standards of accuracy as are the titles on the election ballots such a rule may have an accidental secondary effect of crippling the referendum. It is sufficient to point out that the referendum is not before the court in the case at bar, and that the differences between initiative and referendum are so substantial as to afford adequate reasons to distinguish between them should such a question ever arise. See Palmer v. Benson, 50 Or 277, 91 P 579. Nothing said here in connection with the initiative need necessarily have any bearing upon the referendum.

In view of the failure of the early petitions to apprise the signers of the matter they were petitioning to have placed on the ballot, the circuit court correctly concluded that such signatures could not be counted. A petition to put one question on the ballot has no efficacy to put a different question on the ballot, even though the questions may be similar.

The appellants have also argued that the moving parties in this proceeding have no standing to sue (to enjoin the Secretary of State from putting matter on a ballot). The argument is based upon P.G.E., a Corp. and Randall v. Judd, 184 Or 386, 198 P2d 605, 6 ALR2d 547, and earlier decisions cited therein which held that relief under § 81-2105, OCLA, and its forerunners could be had only in the name of the state. (’Suit must be brought by the attorney general or a district attorney.) The election code now provides that “any person adversely affected” by an act or failure to act on the part of certain election officials may appeal to the courts. OES 246.910.

① We need not now decide whether “person” as used in OES 246.910 (election law) includes “corporation” as it does under ORS 174.100 (general definitions), because in the case at bar one of the plaintiffs was an individual. The statute set forth in the margin is obviously remedial and should be liberally construed. See Recall Bennett Com. v. Bennett et al., 196 Or 299, 317, 249 P2d 479. The numerous decisions holding that suits against the Secretary of State in these matters must be brought in the name of the state no doubt expressed the common-law rule. See, e.g., Friendly v. Olcott, 61 Or 580, 123 P 53. However, ORS 246.910, enacted in 1957, obviously changes the law in this respect.

Affirmed; no party to recover costs.

ORS 246.910. Appeal from Secretary of State or county clerk to courts. “(1) Any person adversely affected by any act or failure to act by the Secretary of State or a county clerk under any election law, or by any order, rule, regulation, directive or instruction made under the authority of the Secretary of State or of a county clerk under any election law, may appeal therefrom to the circuit court for the county in which the act or failure to act occurred or in which the order, rule, regulation, directive or instruction was made or in which such person resides.

“(2) Any party to the appeal proceedings in the circuit court under subsection (1) of this section may appeal from the decision of the circuit court to the Supreme Court.

“(3) The circuit courts and Supreme Court, in their discretion, may give such precedence on their dockets to appeals under this section as the circumstances may require.

“(4) The remedy provided in this section is cumulative and does not exclude any other remedy provided by law against any act or failure to act by the Secretary of State or a county clerk under any election law or against any order, rule, regulation, directive or instruction made under the authority of the Secretary of State or a county clerk under any election law.”