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 *524being 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*525ever, 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, *526lie 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 *527one. 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. *528There 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
*529Mrs. 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*530qualified. 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, *531there 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 *532may 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, *533is 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 *534to 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.
Mrs. Corbett makes no contention (as is advocated in the dissenting opinion) that the application of the disability provided by ORS 260.365 to her present situation does not afford her equal protection of the law and, therefore, is unconstitutional. Relating the length of disability for violation of the Corrupt Practices Act to the length of the term sought by the use of such illegal activity is not an unreasonable classification. Neither is anyone in Mrs. Corbett’s position being treated any differently than she is.
ORS 250.020: “The Secretary of State shall, * * * prepare and furnish to each county clerk a certified statement showing the state * * * offices to be filled in the county at the election, and the names and other information concerning all candidates for such offices to be voted on at the election * *
ORS 249.460: “* * * The Secretary of State shall, * * * canvass the votes for all officers to be voted for in the state at large * * *. The Secretary of State shall grant a certificate of nomination to the candidate having the highest number of votes for each office and issue a proclamation declaring the nomination of each candidate by his party.”
ORS 249.031 (2) (f): “* * * * *.
“* * * (2) Each petition for nomination shall contain: * * * (f) A statement that the candidate will qualify if elected. * * *. ((‡ :*{ % ff
ORS 249.221 (1)(f): “(1) Each declaration of candidacy shall contain: * * * (f) A statement that the candidate will qualify if elected. * * *.
ORS 249.014: “The Secretary of State, * * * may verify the validity of the contents of the documents filed in his office as described in ORS 249.031, 249.221, * *
In Pense v. McCall, 243 Or 383, 393, 413 P2d 722 (1966), we held that a candidate who had filed for office was prohibited from filing for a second office without first having withdrawn his initial filing. We said:
“* * * While, in the ordinary case, the Secretary of State has a ministerial duty to accept a declaration of candidacy regular on its face * * *; yet there would be no such duty where the facts showing the illegality of the declarations were known to the official: * * * [citations omitted].” (dictum).
ORS 251.025: “The nomination * * * of any person for or to any office * * * may be contested as provided in ORS 251.015 to 25Í.090 by any elector entitled to vote for such person or measure at such election, or by any person who was a candidate at such election for the same nomination * * * for any of the following causes and no other:
“(1) Deliberate and material violation of any provision of the election laws in connection with such nomination, election, approval or rejection.
“(2) Ineligibility of the person elected to the office to hold the office at the time of the election.
# tf
ORS 251.045: “Not later than 10 days after the final canvass of votes or other final compilation of the result of any primary, * * * election * * * any person authorized by ORS 251.025 to contest the nomination or election of any person for or to any office * * * may file a petition of contest with the clerk of the circuit court * *
ORS 246.910: “(1) Any person adversely affected by any * ** *** failure to act by the Secretary of State * * * may appeal therefrom to the circuit court for the county in which the * * * failure to act occurred * *
®ORS 260.345: “(1) Any registered elector may file with the Secretary of State, * * * a written complaint alleging that a violation of any provision of the election laws has occurred * * *. * * * *
“(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 * * *.
«« ****>»
In Pense v. McCall, 243 Or 383, 413 P2d 722 (1966), we permitted the use of mandamus to prohibit the Multnomah County *529Registrar oí Elections from putting on the ballot the name oí a candidate who was disqualified from filing. See Roberts v. Myers, 260 Or 228, 489 P2d 1148 (1971).
Oregon Constitution, Art II, § 14.
Oregon Constitution, Art IV, § 4.
Oregon Laws 1971, ch 749, § 34; section renumbered from ORS 260.470 to 260.365.
In addition to that portion of Senator Mahoney’s statement before the committee which is included in the dissenting opinion, the following also appears:
“Question: [by a member of the committee] I understand that what this bill will do its difference is the taking out the word elected and putting in the word served because this Senator Corbett would have wanted to run for the Senate in—
“Mahoney: I don’t know what her plans were. * * *
“Question: I am specifically interested in the language on line six which discusses the annulment on setting aside of nomination does this contemplate the setting aside of office and I am interested in your comment that you do not feel that the court should decide the issue does this contemplate the setting aside of office by the Legislative Assembly?
“Answer: No, it contemplates merely that the innovation or prohibition extends only to serving during that period not to be denied against filing * *
Oregon Constitution, Art XV, § 1.
Oregon Constitution, Art VI, § 1.
Oregon Constitution, Art V, § 16.
Cases concerning this and similar problems are collected in 88 ALR 812, 831 (1934), and 143 ALR 1026, 1031 (1943).
See State v. Mucci, 10 Ohio St 2d 60, 225 NE2d 238, 241 (1967).