ELECTIONS ‑- BALLOTS ‑- NAME OF CANDIDATE OFFICES AND OFFICERS ‑- COUNTIES ‑- AUTHORITY OF COUNTY AUDITOR TO REJECT A DECLARATION OF CANDIDACY

ELECTIONS ‑- BALLOTS ‑- NAME OF CANDIDATE OFFICES AND OFFICERS ‑- COUNTIES ‑- AUTHORITY OF COUNTY AUDITOR TO REJECT A DECLARATION OF CANDIDACY

(1) A candidate, in filing for office, has the right to have printed on the ballot any name by which he is commonly known in the community.

(2) A county auditor has no authority to reject a declaration of candidacy.

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                                                                    July 17, 1958

Honorable John Panesko
Prosecuting Attorney
Lewis County
Security State Bank Building
Chehalis, Washington                                                                                    Cite as:  AGO 57-58 No. 210

Dear Sir:

            You have requested an opinion of this office on two questions which we quote for convenience, as follows:

            "(1) Is it proper for a woman candidate in a Declaration of Candidacy who has been married more than one time to use her first married name rather than her present married name, or does she have a choice of using her first married name, second married name or both?

            "(2) Does the County Auditor have any responsibilities or duties in accepting a Declaration of Candidacy where her present name is not used?"

            The answer to both questions are contained in the analysis.

                                                                     ANALYSIS

            (1) The only statutory regulation of the form of the names of candidates appearing on election ballots is prescribed by Chapter 198, Laws of 1943.  Section 1 of that chapter deals with the method of eliminating confusion where two or more persons filing for the same office have similar names.  Section 2 read

             [[Orig. Op. Page 2]]

            "No person shall file a declaration of candidacy for any public office of

            "(a) a nonexistent or fictitious person; or

            "(b) the name of any person not his true name; or

            "(c) a name similar to the incumbent seeking re‑election to the same office with intent to confuse and mislead the electors by taking advantage of the public reputation of the incumbent; or

            "(d) a surname similar to one who has already filed for the same office, and whose political reputation is widely known, with intent to confuse and mislead the electors by capitalizing on the public reputation of the candidate who had previously filed."

            Section 3 provides that any person violating the statute shall be guilty of a felony.

            Section 4 provides a method by which a candidate alleged to have violated § 2 may be challenged.  It provides that any candidate who believes that the electors will be misled or confused by the candidacy of any person who has filed for the same office, as provided in §§ 1 and 2 shall, not more than three days after the time for the filing has expired, present in writing to the filing officer a written request, stating the objections, that a meeting of all the candidates be held immediately for the purpose of eliminating the confusion.

            At common law a person's name is the designation ordinarily used and by which he or she is known in a community.  In the commonly accepted sense a name is the designation or appellation used to distinguish one person from another.  In the absence of any statute to the contrary, a person may adopt any name by which he may become known and by which he may transact business, execute contracts, and sue or be sued.  State ex rel. Lane v. Cornell, 347 Mo. 932, 149 S.W. (2d) 815 (1941); Romans v. State, 178 Md. 588, 16 Atl. (2d) 642 (1940);Badger Lumber Co. v. Collinson, 97 Kan. 791, 156 Pac. 724 (1916);Sanders v. Sitton, 179 Kan. 118, 292 P. (2d) 1099 (1956).

            InWard v. State, 242 Ala. 307, 6 So. (2d) 394 (1942), the court ruled that a true name is any name by which a person is commonly known and called.

            At present in this state there has been no statutory abrogation in this common law rule.  Although we have adopted a statutory method of changing names, it has been held that statutory provisions for changing names are merely in affirmance and aid of the common law rule that one may change his name at will  [[Orig. Op. Page 3]] for any honest purpose, the purpose of such statutes being to make a definite point of time when the change shall take effect.  In this connection, custom gives a person his family name and such Christian name as his parents choose to put before it, but this is only a general rule from which an individual may depart if he chooses.  In re Cohen, 142 Misc. Rep. 852, 255 N.Y.S. 616, 110 A.L.R. 219 (1932).

            Providing he asks in good faith and with honest purposes, a candidate for office is legally entitled to have printed upon the ballot the name which he has adopted and under which he transacts business, from which it follows that a married woman has the lawful right to have printed upon the ballot a name adopted and used in business for many years, which contains her husband's initials prefixed by the term Mrs. 18 Am.Jur. 295, § 177; Huff v. State Election Board, 168 Okla. 277, 32 P. (2d) 920, 93 A.L.R. 906 (1934).

            InHuff v. State Election Board, supra, Mrs. I. L. Huff petitioned the court to compel the placing of her name on the official primary election ballot as "Mrs. I. L. Huff".  In granting the writ the court said, citing a previous case:

            "Although the custom is universal for all male persons to bear the name of their parents, there is nothing in the law prohibiting a man from taking another name, if he so desires; nor is there any penalty or punishment for so doing.

            ". . .

            "It is sufficient, in legal proceedings and elsewhere, that a person is designated by a name by which he is commonly known and called, . . ."

            From the above authorities we must conclude that the question of whether a person may file for re‑election under a particular name depends upon whether that is the name by which he is commonly known and designated in the community.  Such a determination of course is a question of fact which may only be determined upon consideration of all the circumstances surrounding his use of the name.

            (2) In answer to your second question, we direct your attention to a letter from this office to the prosecuting attorney of Lewis County dated May 29, 1944, a copy of which is enclosed, which contained the following language:

            ". . . Nothing in . . . [the] statute places a duty on . . . the county auditor . . . to inquire into the validity of the signatures on a declaration of candidacy. . . . both the county auditor  [[Orig. Op. Page 4]] and the election board act merely in a ministerial capacity in conducting elections and performing election duties."

            We feel that the rationale and the conclusion expressed therein are equally applicable in the instant case.

            That the county auditor has no duty to inquire into the validity of a declaration of candidacy appears to be especially true where the question is whether the name advanced by the candidate is that person's true name.  We feel that this is true because the legislature has provided ample machinery for challenging the use of a name by a candidate and has not seen fit to confer that responsibility upon the auditor.

            RCW 29.04.030 provides that any judge of the supreme court or superior court in the proper county shall by order prevent the name of any person from wrongfully being placed upon the ballot.

            Section 5 of chapter 198, Laws of 1943, supra, provides the duty of a filing officer following a declaration of a candidate and challenge of that declaration pursuant to sections 2 and 4 of the same act.  It reads in part as follows:

            ". . . if the filing officer shall be satisfied that the candidate is a fictitious or non-existent person or that the declaration of candidacy was not filed in the true name of the person, the candidacy of such person shall be cancelled and shall not be printed on the ballot. . . ."

            We deem this to be a proper situation for the application of the doctrine ofexpressio unius est exclusio alterius, by which it must be concluded that the legislature having provided an adequate remedy, that remedy is exclusive.  State v. Department of Public Service, 1 Wn. (2d) 102, 95 P. (2d) 1007 (1939);State v. Thompson, 38 Wn. (2d) 774, 232 P. (2d) 87 (1951).

Very truly yours,

JOHN J. O'CONNELL
Attorney General

GERALD F. COLLIER
Assistant Attorney General