dissenting.
The majority concedes that the statements in question “were ambiguous and might have permitted an erroneous inference to have been drawn therefrom.” The majority then relies upon Mosee v. Clark,① for the proposition that an ambiguous statement is not false under the Corrupt Practices Act, even though one of the inferences which can be drawn from the statement is false. If Mosee v. Clark stands for that proposition, it certainly should be overruled. It would seem patently erroneous to hold that a candidate is privileged under the Corrupt Practices Act to make an ambiguous statement capable of both a true and a false meaning with the purpose of deceiving a part of the electorate. The Corrupt Practices Act was adopted “To secure and protect the purity of the ballot.”② To effect this objective, the standard of conduct of candidates in mailing representations to the electorate should be at least as high as that which we apply in an action for *222fraud and deceit.③ There we say that “ambiguous statements capable of two meanings, one of which is true and the other false, constitute misrepresentations if the false meaning is understood as the true one; and if this was the result intended, it is fraudulent.”④
Neither in Mosee v. Clark nor in any other of our cases have we suggested that a candidate may insulate himself from the sanctions of the Corrupt Practices Act by maldng ambiguous statements calculated to deceive a part of the electorate. The most that Mosee v. Clark can stand for is that the court would not infer from the particular ambiguous statement an intent to mislead the public. The court was careful to point out that “In the case at bar there was no deliberate falsehood,”⑤ thus indicating that if the same ambiguous statement hade been made with the intent to deceive, the Act would have been violated.
The majority in the present case takes the position that it is not important to inquire whether Mr. Lee intended to deceive the public by his ambiguous statements. In my opinion, this is an obviously erroneous and indefensible interpretation of our Corrupt Practices Act which invites unscrupulous candidates to formulate cunning ambiguities capable of deceiving large numbers of the electorate. The majority speaks *223of the “linguistic quagmire” into which we, the courts, would be led if we were to treat ambiguous statements as false and that we would become “censors of political campaigns” judging the reasonableness of all campaign statements and the possible inferences to be drawn therefrom. On the same kind of reasoning, we should get out of the business of deciding fraud and deceit cases.
The fallacy in the court’s position is quite clear. The legislature, in enacting ORS 260.532, intended that the jury and not the court was to resolve the questions of falsity and intent to deceive. The only way that the court can get into the “linguistic quagmire” and become “censors of political campaigns” is to usurp the function of the jury,⑥ and that is precisely what the majority has done in the present case.
The statement that Judge Tanzer decided that $72,-000 should be paid for attorney’s fees is true in one sense and false in another. A large number of people in this state do not know how an appellate court operates and it is possible that some of the voters were led to believe that Judge Tanzer, either acting individually or as a part of a collegial court, had the authority to decide how much attorney’s fees should be paid in a particular case. A voter who believed this to be true, might well decide to vote against Judge Tanzer, whereas if he realized that neither Judge Tanzer nor the Court of Appeals had the authority to fix attorney’s fees, he might well cast his vote the other way. To say, as the majority does, that the ambiguity riding on the word “decided” and “should pay” rather than some other expression “is only a question of semantics,” is *224to disregard the significance which a voter might attach to those words if understood as being used in one way rather than another. The unfavorable image of the legal profession arises partly out of the feeling on the part of a large segment of the public that lawyers charge excessive fees. Those holding this view would, I suspect, similarly criticize a judge who fixed a high fee.
When the $72,000 attorney fee referred to in Mr. Lee’s advertisement was awarded in the trial court, the matter became the subject of editorial comment and general public concern. The jury, in finding against Mr. Lee in the present case, could have decided that Mr. Lee, knowing of this general criticism, used the statement that his opponent “decided” that “$72,-000 should be paid” for the purpose of inducing the voters to believe that Judge Tanzer actually had a part in fixing the $72,000 fee in the condemnation case. There was ample evidence to prove that Mr. Lee knew that neither Judge Tanzer nor the Court of Appeals had authority to decide how much attorney’s fees should be awarded in a particular case and that their only function was to determine whether there was sufficient evidence to support the trial court’s award.
There was also evidence that as a caption for the statement in question, Mr. Lee had put in large letters “NOT FOR SALE.”⑦ The jury could believe that the caption, together with the statement that “the firm that received this money [$72,000] made a $200.00 con*225tribution to the present Judge’s campaign,” was intended to convey the idea that Mr. Tanzer sold his vote to the attorneys who were awarded the fee but that Mr. Lee was “not for sale.” The jury could infer that the same ldnd of ambiguous insinuation was intended in using the words “decided” and “should pay,” so that the voter would go to the polls with the belief that Judge Tanzer had fixed an exorbitant fee.
I think that the majority is led into error by its concentration on the word “decided” as if the question of the falsity of Mr. Lee’s statement could be determined by an examination of the meaning of that word alone. This approach fails to take account of the fact that words must be dealt with in relation to the other words which they accompany and in relation to the circumstances in which they are used. A series of absolutely true statements, taken separately, can convey an utterly false idea when heard together. Even if the word “decided” could be treated as having only one meaning, the statements that Judge Tanzer decided that $72,000 attorney’s fees should be paid to a law firm, and that the law firm which received the fee made a contribution to Judge Tanzer, and that Mr. Lee accepts no contributions, although all separately true, could convey the false idea that Judge Tanzer made the decision because he was to be the recipient of a campaign contribution. The addition of another presumptively true statement, “not for sale” would clearly permit a false inference that Judge Tanzer was influenced in making his decision. It was for the jury to decide whether these statements were capable of carrying a false meaning and whether Mr. Lee intended that to occur.
McAllister and Tongue, JJ., join in this dissent.253 Or 83, 453 P2d 176 (1969).
Or Laws 1909, ch 3.
“By analogy to the law of defamation, the important question should not be whether a statement was capable of more than one meaning, but whether the language was understood in its unlawful sense. There should be no defense simply because the statement permitted an innocent interpretation, especially if the inference of a false fact was intended.” Rees, Uncandid Candidates and the Oregon Corrupt Practices Act, 50 Or L Rev 299, 308 (1971). See McLeod v. Tribune Publishing Co., 52 Cal2d 536, 548, 343 P2d 36, 42 (1959).
1 Harper & James, The Law of Torts 587, § 7.14 (1956).
253 Or at 88.
See Constitution of Oregon, Art. VII (amended), § 3; ORS 19.125.
This caption was not included, in the alleged false statement set out in the complaint. Defendant contends that because the caption was not recited as a part of the alleged false statement, it cannot be used to prove any element in the case. I am unable to see why the caption cannot be used to show Mr. Lee’s intent in publishing the advertisement in question.