HOLMAN, J.
Petitioner is an elector and an unsuccessful candidate in the May 1972 primary election for the Democratic nomination for State Treasurer. He filed an original proceeding in this court for an alternative writ of mandamus directed to Clay Myers, Secretary of State, seeking to require him to omit Alice Corbett’s name from the list of Democratic nominees certified for the 1972 general election. Alice Corbett received the highest number of votes for the Democratic nomination for State Treasurer in the primary election. This court issued the alternative writ. In response thereto, the Secretary of State filed a demurrer and Alice Corbett filed a petition to intervene. The petition to intervene was allowed.
The issue sought to be presented is whether Alice Corbett is a qualified candidate for the office of State Treasurer and, therefore, whether the Secretary of State can properly certify her as the Democratic nominee. In May of 1968 she was a candidate in the Democratic primary for the office of State Senator and received the highest number of votes for the position which she sought. However, she was found to have violated the Corrupt Practices Act, ORS ch 260, and was disqualified. See Cook v. Corbett, 251 Or 263, 446 P2d 179 (1968). Petitioner claims that Mrs. Corbett’s violation of the Act in 1968 disqualifies her from [524] being a candidate for State Treasurer in 1972. Mrs. Corbett contends that she is qualified, that the petitioner has other adequate legal remedies, and that the Secretary of State has no duty to omit her name from those certified as nominees.① Although the Secretary of State demurred to the petition, he takes a neutral position.
A writ of mandamus lies to compel a public official to perform his official duties. The first question, therefore, is whether the Secretary of State has a duty to omit from certification the name of a candidate who won the primary election if such candidate is otherwise unqualified.
ORS 250.020② provides that the Secretary of State shall prepare and deliver to the county clerks a certification of offices and candidates for the general election. ORS 249.460③ provides that he shall issue a certificate of nomination to the person receiving the highest number of votes in the primary. Iiow[525] ever, either ORS 249.031 (2)(f)④ or ORS 249.221 (1) (f)⑤ (depending upon whether he files by petition or declaration) requires a candidate to file a statement with the Secretary of State that such candidate will qualify if elected. The Secretary of State is given the authority to verify the validity of all such statements. ORS 249.014.⑥ This authority would be meaningless if it was not contemplated that he would take action if facts became known to him which show that the candidate is unqualified. It is obvious that the Secretary of State has a duty to withhold certification of a candidate who he knows is ineligible, even though the candidate received the highest number of votes in the primary election.⑦ The Secretary of State necessarily has knowledge of the opinion of this court which held that Mrs. Corbett violated the Corrupt Practices Act. We conclude that if such violation disqualifies her being elected or serving as State Treasurer in 1972, [526] lie lias a duty to omit her name from the certification of candidates for the general election.
A writ of mandamus may be brought only when there is no other adequate and complete remedy at law. Such a remedy at law did exist at one time. However, it is no longer available to petitioner. OES 251.025⑧ provides that the nomination of any person may be contested by any elector or by any person who was a candidate for the nomination if the person nominated has violated any provision of the election laws, or is ineligible to hold the office. The contest must be filed in circuit court within ten days after the final canvass of votes.⑨ Petitioner did not avail himself of this remedy. Normally, this would preclude relief afforded by way of the extraordinary legal remedy of mandamus. 2 Spelling, Injunctions and Other Extraordinary Eemedies eh XL, § 1380, at 1190 (2d ed 1901). However, we believe such a prohibition from using the writ should not necessarily follow when the right to be vindicated is a public as well as a private [527] one. If petitioner were the only one concerned, we would not allow the use of the writ where he permitted the time to elapse within which he could have brought a statutory contest. However, we believe we should not invoke such a prohibition when the entire voting public has an interest in knowing as soon as possible whether Mrs. Corbett is qualified.
In addition, OES 246.910⑩ provides that any person adversely affected by the Secretary of State’s failure to act under any election law may appeal therefrom to the circuit court. It would appear that the procedure under this statute is still available to petitioner.
Also, OES 260.345⑪ states that any elector may file a written complaint with the Secretary of State, alleging that a violation of the election laws has occurred. If the Secretary of State, after investigation, believes that the complaint is well founded, he has the duty to prosecute the violation in the name of the state. Petitioner has filed no such written complaint. [528] There is some question whether this procedure can properly be used in determining whether a nominee is qualified to hold office. It may be that its use is limited to allegations of improper conduct in the election in which the candidate is presently engaged. No one is contending that Mrs. Corbett has been guilty of improper practices in securing her nomination for the office of State Treasurer. The question is whether she is disqualified as a candidate for State Treasurer because of her conduct in the election for the State Senate in 1968.
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HOLMAN, J.
Petitioner is an elector and an unsuccessful candidate in the May 1972 primary election for the Democratic nomination for State Treasurer. He filed an original proceeding in this court for an alternative writ of mandamus directed to Clay Myers, Secretary of State, seeking to require him to omit Alice Corbett’s name from the list of Democratic nominees certified for the 1972 general election. Alice Corbett received the highest number of votes for the Democratic nomination for State Treasurer in the primary election. This court issued the alternative writ. In response thereto, the Secretary of State filed a demurrer and Alice Corbett filed a petition to intervene. The petition to intervene was allowed.
The issue sought to be presented is whether Alice Corbett is a qualified candidate for the office of State Treasurer and, therefore, whether the Secretary of State can properly certify her as the Democratic nominee. In May of 1968 she was a candidate in the Democratic primary for the office of State Senator and received the highest number of votes for the position which she sought. However, she was found to have violated the Corrupt Practices Act, ORS ch 260, and was disqualified. See Cook v. Corbett, 251 Or 263, 446 P2d 179 (1968). Petitioner claims that Mrs. Corbett’s violation of the Act in 1968 disqualifies her from [524] being a candidate for State Treasurer in 1972. Mrs. Corbett contends that she is qualified, that the petitioner has other adequate legal remedies, and that the Secretary of State has no duty to omit her name from those certified as nominees.① Although the Secretary of State demurred to the petition, he takes a neutral position.
A writ of mandamus lies to compel a public official to perform his official duties. The first question, therefore, is whether the Secretary of State has a duty to omit from certification the name of a candidate who won the primary election if such candidate is otherwise unqualified.
ORS 250.020② provides that the Secretary of State shall prepare and deliver to the county clerks a certification of offices and candidates for the general election. ORS 249.460③ provides that he shall issue a certificate of nomination to the person receiving the highest number of votes in the primary. Iiow[525] ever, either ORS 249.031 (2)(f)④ or ORS 249.221 (1) (f)⑤ (depending upon whether he files by petition or declaration) requires a candidate to file a statement with the Secretary of State that such candidate will qualify if elected. The Secretary of State is given the authority to verify the validity of all such statements. ORS 249.014.⑥ This authority would be meaningless if it was not contemplated that he would take action if facts became known to him which show that the candidate is unqualified. It is obvious that the Secretary of State has a duty to withhold certification of a candidate who he knows is ineligible, even though the candidate received the highest number of votes in the primary election.⑦ The Secretary of State necessarily has knowledge of the opinion of this court which held that Mrs. Corbett violated the Corrupt Practices Act. We conclude that if such violation disqualifies her being elected or serving as State Treasurer in 1972, [526] lie lias a duty to omit her name from the certification of candidates for the general election.
A writ of mandamus may be brought only when there is no other adequate and complete remedy at law. Such a remedy at law did exist at one time. However, it is no longer available to petitioner. OES 251.025⑧ provides that the nomination of any person may be contested by any elector or by any person who was a candidate for the nomination if the person nominated has violated any provision of the election laws, or is ineligible to hold the office. The contest must be filed in circuit court within ten days after the final canvass of votes.⑨ Petitioner did not avail himself of this remedy. Normally, this would preclude relief afforded by way of the extraordinary legal remedy of mandamus. 2 Spelling, Injunctions and Other Extraordinary Eemedies eh XL, § 1380, at 1190 (2d ed 1901). However, we believe such a prohibition from using the writ should not necessarily follow when the right to be vindicated is a public as well as a private [527] one. If petitioner were the only one concerned, we would not allow the use of the writ where he permitted the time to elapse within which he could have brought a statutory contest. However, we believe we should not invoke such a prohibition when the entire voting public has an interest in knowing as soon as possible whether Mrs. Corbett is qualified.
In addition, OES 246.910⑩ provides that any person adversely affected by the Secretary of State’s failure to act under any election law may appeal therefrom to the circuit court. It would appear that the procedure under this statute is still available to petitioner.
Also, OES 260.345⑪ states that any elector may file a written complaint with the Secretary of State, alleging that a violation of the election laws has occurred. If the Secretary of State, after investigation, believes that the complaint is well founded, he has the duty to prosecute the violation in the name of the state. Petitioner has filed no such written complaint. [528] There is some question whether this procedure can properly be used in determining whether a nominee is qualified to hold office. It may be that its use is limited to allegations of improper conduct in the election in which the candidate is presently engaged. No one is contending that Mrs. Corbett has been guilty of improper practices in securing her nomination for the office of State Treasurer. The question is whether she is disqualified as a candidate for State Treasurer because of her conduct in the election for the State Senate in 1968.
Despite the fact that the procedure under ORS 246.910, and perhaps that under ORS 260.345, is still available to petitioner, we conclude that we should decide the merits of the ease. At this late date, it is extremely doubtful whether the procedure under either of the above statutes would constitute an adequate remedy. Both procedures would have to be instituted in circuit court. Undoubtedly, an appeal from the decision of the circuit court would be taken. In the event Mrs. Corbett was found to be disqualified, there would be inadequate time for any substitute nominee to campaign effectively for office. In Bradley v. Myers, 255 Or 296, 466 P2d 931 (1970), where the Secretary of State refused to accept a party’s filing for office, we permitted the use of a writ of mandamus to determine whether that party was qualified to be a candidate. It seems clear that ORS 246.910 would have been available to the candidate. However, without discussing ORS 246.910, we allowed the use of mandamus to decide the question. The application for the writ was made about two and one-half months prior to the election.⑫
[529] Mrs. Corbett also contends that quo warranto is the proper remedy to decide whether she can hold the office of State Treasurer as the result of the 1972 elections. It is not now a proper remedy because the present right to hold the office of State Treasurer is not in issue. Neither the petitioner nor Mrs. Corbett is now State Treasurer. See State ex rel v. Danielson et al, 215 Or 5, 328 P2d 868 (1858). If, as suggested by Mrs. Corbett, this matter is dismissed and a quo warranto proceeding is instituted if she is elected and takes office, the electorate would be deprived of a choice for State Treasurer if, in fact, she is disqualified.
Petitioner seeks to disqualify Mrs. Corbett under the provisions of OES 2G0.365:
“(1) A person nominated or elected to public office, and whose nomination or election has been annulled and set aside for violation of any provision of the election laws, shall not, during the period fixed by law as the term of such office, serve in any office or vacancy in any office or position of trust, honor or emolument, whether elected or appointed thereto, under the laws of the state or any municipality.
“(2) Any appointment or election to any office or position of trust, honor or emolument made in violation of subsection (1) of this section shall be void” (emphasis added.)
The statute provides that a person whose nomination has been set aside for violation of the election laws shall not thereafter serve in any office during the term of the office for which the candidate was dis[530] qualified. The State Treasurer takes office on the first Monday of the year;⑬ a state senator takes office on the second Monday of the year.⑭ If Mrs. Corbett had been elected State Senator in 1968, her term of office would have expired January 8, 1973. If she is elected State Treasurer, her term of office would begin January 1, 1973, or one week before her period of disqualification expires.
Because the statute prevents only her serving during the period of disqualification and does not prevent her being elected during that time, it is urged that she may avoid the restriction by waiting one week and taking her oath of office after her period of disqualification has expired. It is an appealing argument. However, subsection (2) of the statute states that an election to any office in violation of subsection (1) is void. This means that an election to an office in which service is required during the period of disqualification is void. The statute was amended in 1971⑮ and the words “serve in” were substituted for “be elected or appointed to fill.” The purpose of this change was to allow disqualified persons to run for office during the period of their disqualification. The statute still does not allow persons to serve during the period of their disability and the only reasonable construction of subsection (2) is that if such service is required the election is void.
It is apparent from the legislative history that one of the purposes of the 1971 amendment was to allow Mrs. Corbett to run for office in 1972. However, [531] there is nothing to indicate that it was the intention of the legislature to allow her to run in 1972 for an office for which she could not qualify at the beginning of its term, if she was elected.⑯
Normally, the incumbent continues to hold office until his successor is elected and qualified.⑰ However, if Mrs. Corbett were permitted to qualify a week after the State Treasurer’s duties began, the present State Treasurer could not hold over until then because he is prevented by the Constitution from serving more than two consecutive elective terms,⑱ and he will have completed serving his second such term on the first Monday in January. Therefore, the Governor would be required to appoint someone to serve during the interim.⑲ We do not believe the legislature contemplated such an avoidance of the provisions of the statute. If such procedure may be indulged in to avoid the last week of disqualification, the same procedure [532] may then be used to avoid the last month, the last year, or the last two years of disqualification.⑳
Furthermore, our conclusion is in keeping with the Oregon Constitution which gives the people the right to elect their State Treasurer. The statute in question should not be construed in a manner which would permit an unnecessary lapse in this right of choice. Placing a party’s name on the ballot is a form of representation to the voters that, insofar as can then be known, the candidate, if elected, will be able to qualify for the full term of the office. This is the import of that portion of a candidate’s declaration of candidacy wherein he states that he will qualify if elected. The following language from the opinion in Commonwealth v. Keiser, 340 Pa 59, 16 A2d 307, 312 (1940), is appropriate:
“To permit an ineligible candidate-elect to delay entering upon the duties of his office after his term begins, until the disability is removed by time or at his own caprice, would work a species of fraud upon the electorate, and pro tanto create an interregnum in office incompatible with that continuity in government which is essential to its proper and efficient functioning. This respondent was elected for a term of six years beginning January 1, 1940. When he submitted himself to the people for election, he deceptively declared in his nomination papers that he was qualified to hold the office he sought, and it may be assumed that those who voted for him did so in the mistaken belief that the candidate of their choice would be legally capable of holding the entire term for which they were balloting. That they Avere deceived with respect to a matter of days, rather than of months or years, [533] is a difference in the extent of the deception, not in its nature. Its effect in either event was to bring about the election of one who could not, by any act of his own, or in any possible circumstances, remove the disqualification so as to completely fill the office for which he was standing, and to which he had been elected by a misinformed constituency.
“From the standpoint of the public interest in the continuity of office, it is equally important that an elected officer shall be eligible to hold the office from the beginning of its term. Circumstances such as illness, unavoidable absence at the beginning of the term and the like, may excuse his entering upon the duties of the office immediate^/, so that he may not be removable for failing to do so. But he cannot require that an office, the public need for which is sufficiently evidenced by its creation and existence, shall remain vacant for any length of time while he is qualifying himself to assume it * * *."㉑
There would be no interregnum in the office in the present situation since Oregon law provides that the Governor will fill the vacant office by appointment. However, the appointee, even though appointed for a term of only one week, would not have been elected by the voters. Thus, the voters would have been, in effect, partially disenfranchised.
It is our conclusion that Mrs. Corbett is not qualified to be a candidate for the office of State Treasurer in the November 1972 general election because, if elected, she cannot qualify at the beginning of her term as the result of the disability imposed upon her by the provisions of ORS 260.365. The demurrer to the alternative writ of mandamus is overruled and a peremptory writ of mandamus will issue [534] to the Secretary of State requiring him to omit Alice Corbett’s name from the list of those certified as candidates for the forthcoming general election.
“(3) Upon receipt of a complaint or notice under subsection (1) * * * of this section, or upon information otherwise available to him, the Secretary of State immediately shall cause such complaint, notice or other information to be examined for the purpose of determining whether a violation of any provision of the election laws has occurred * * *.
“(4) If the Secretary of State determines under subsection (3) of this section that a violation of any provision of the election laws has occurred, he immediately shall cause such violation to be prosecuted in the name of the state * * *.
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