Oregon Advisory Opinions January 01, 1974: OP 7032

Advisory Opinion Text

DEPATRMENT OF JUSTICE

100 STATE OFFICE BUILDING

SALEM,OREGON 97310

TELEPHONE:(503)378-6368

January 2, 1974

No. 7032

This opinion is issued in response to questions sub­mitted by Representative E. E. Patterson.

FIRST QUESTION PRESENTED

Is the use of moneys received from the sale of bonds or other obligations issued pursuant to Article XI-E of the Oregon Con­stitution limited to the rehabilitation and reforestation of state-owned lands, or can the moneys also be loaned for the purpose of rehabilitating and reforesting privately-owned lands?

ANSWER GIVEN

The Legislature may authorize loans for rehabilitation and reforestation of private lands to the extent that the Legislature finds that a public purpose is being served thereby, with appropriate safeguards to assure repayment to the state.

SECOND QUESTION PRESENTED Does the language of Article XI-E require that funds derived from the products or the sale, exchange or use of all reforested lands be dedicated to repayment so long as any bonds are outstanding, or only so long as there are bonds outstanding from which a given tract of land received the benefit?

ANSWER GIVEN

The use of subaccounts which clearly identi­fy all land benefitted by the proceeds of particular bond sales will permit release of benefitted lands when the bond issue is fully repaid.

DISCUSSION

There are no reported Court decisions interpreting Article XI-E. No prior Attorney General's opinion has dealt with the subject of the first question presented. An examina­tion of available history has been made to establish the back­ground and political environment in an effort to ascertain contemporary intent.

The first of the disastrous Tillamook fires occurred in 1933, the second in 1939 and the third in 1945. The three fires killed more than 13 billion board feet of timber, burn­ing over 360,882 acres. Charred debris, ashes and cinders clogged the streets of coastal cities. Debris fell on decks of ships 500 miles at sea. Coming as it did in the depth of the Depression, the first Tillamook fire created economic effects in the State of Oregon as frightening as the volcanic eruption of smoke and flame. Over the years there was agitation for better methods of fire prevention and fire con­trol, and for reforestation—but little action. Neither the counties nor private individuals involved had the money to reforest their land, and, indeed, the incentive was lacking. There was no road system for access to the burned over area for removal of snags. During the remainder of the 1930's it did not appear that the cost of reforestation could ever be recovered from sales of timber, at least during the lifetimes of persons then interested. The advent of World War II improved marketing possibilities for timber, but it took the 1945 fire to spur action.

In August 1945, the Governor appointed a special forestry committee, charged with the duty of planning for future fire prevention and suppression, and for reforestation and rehabilitation of forest lands. The Governor's charge to the committee was not limited to the Tillamook burn area, but recognized that the third fire was the spur which accelerated the demand for action. That special committee recommended, not unanimously, the issuance of bonds of the State of Oregon to pay for the salvaging of burned timber and for reforesta­tion and rehabilitation. That report was submitted to the Governor in May of 19 46. Legislative attention and discussion resulted in the adoption by the 1947 Legislature of House Joint Resolution 24 which was to become Article XI-E of the Oregon Constitution when it was approved by the people in November 19 48.

There was no voter's pamphlet material in opposition to the ballot measure. The argument for the measure in the voter's pamphlet for the regular general election in 194 8 discussed the depletion of the forest resources of the state and argued the necessity for reforestation of burned over forest lands within the state. It mentioned that counties and the state owned forest lands in need of rehabilitation. It recited further that these lands constitute a serious and continuing fire hazard. Unfortunately, the legislators who prepared the voter's pamphlet material did not address them­selves to the question of whether it was intended to permit moneys from the bond program to be used for rehabilitation of private lands.

Records do not exist to show whether, in adopting House Joint Resolution 24 in 1947, the Legislature intended that reforestation and rehabilitation would apply to privately-owned lands as well as state and county lands. We have been able to find little which would throw light on the intent of the public when it voted on the measure in 1948. The Portland City Club study committee recommended against the measure. The Portland City Club Bulletin, Volume 29, No. 22, October 22, 19 48. At page 173, the report said: "It may be noted that there is nothing in the statement of purpose to preclude the expenditure of state funds on private lands. This may or may not be desirable but to avoid ambiguity the purposes for which funds may be expended might have been more clearly stated." The City Club rejected the recommendation of its committee by a large majority (City Club Bulletin, Volume 29, No. 26, October 29 , 1948, page 193). Comment in the Oregonian of October 17, 1948, and October 31, 1948, and the Oregon Journal of October 29, 1948, indicated editorial approval. Those comments indicated that the main objection of opponents to the measure was their belief that the timber operators should be required to rehabilitate and reforest all burned over lands. The objectors, principally the AFL and the Grange, did not want public money spent for such purposes even on public land. Businessmen generally supported the measure, if their attitude was correctly reflected in "Your Taxes" published by Oregon Business and Tax Research, Inc., in June 1948. That publica­tion did not discuss whether the measure would apply only to publicly-owned lands, but pointed out that the state at that time owned 225,000 acres of forest lands in need of rehabilita-tion and that counties owned considerable acreage in addition.

After passage of HJR 24 at the polls in 1948, the 1949 Legislature adopted Chapter 102, known as the Forest Rehabilitation Act, now ORS 530.210 to 530.290. This Act implemented the provisions of Article XI-E. Whether because it seemed politically wise, or legislators thought the Constitution required limitation to public lands, or whether their collective judgment simply dictated its application to state lands is not now known. The legislative enactment was, and remains, limited to public lands.

There is a paucity of real evidence as to the intent of either the Legislature or the voters in acting upon HJR 24.

Perhaps the only sensible way to deal with the meaning of that amendment is to look at its language. This is a course which is generally advocated by Ray Stringham in an article entitled "Crystal Gazing—Legislative History in Action," published in the American Bar Association Journal of May 1961. After pointing out what the author considered to be highly inappro­priate results from attempts by the Courts to glean legislative intent, the article concluded:

"Far better would it be for the courts to accord to the legislature and executive the respect due to coordinate departments, to accept laws as passed according to their own words, the careful crystallization of study, preparation, drafting, debating, redrafting and final enactment.

A law is what it says, not the raw clay of which it was sculptured."

Stringham further pointed out that legislative history is not law, it can only be evidence.

As we direct our attention to the language of Article XI-E, we find that its purpose is stated as the sale of bonds, ". . .to provide funds for forest rehabilitation and reforesta­tion and for the acquisition, management, and development of lands for such purposes." That language is broad enough to include reforestation and rehabilitation of privately-owned lands, should the Legislature determine that such use is for a public purpose.

It has previously been held that the reclamation of arid desert lands is a public enterprise. Cookinham v. Lewis , 58 Or. 484, 114 P. 88, 115 P. 342 (1911); McMahon v. Olcott , 65 Or. 537, 133 P. 836 (1913). In McMahon an act which provided for the irrigation and reclamation of desert land, some owned by the state and some private, was challenged. At page 542, Justice McNary, speaking for the Court, said:

"Unless a positive prohibition exists in the law, the legislature has an almost unlimited field for operation, even though the law may be special or local in its character."

The Court approved the carrying out of the desert land reclama­tion act.

Oregon has had a long history of assisting irrigation districts, which essentially serve private land. Article XI-A of the Constitution was adopted for the express purpose of making home and farm loans to veterans. The state has loaned common school fund money to private parties. Other instances could likewise be noted. If, as now proposed, the Legislature chooses to authorize loans for reforestation purposes under circumstances assuring repayment to the state, it appears proper for it to do so.

Article XI-E likewise contains the sentence: "This amendment shall supersede all constitutional provisions in conflict herewith." That language differs from language con­tained in other additions to Article XI. Language most nearly like that is found in Article XI-A, Section 5, which states that it repeals sections of the Constitution in conflict with the amendment, insofar as they do conflict. Article XI-F authorizes issuance of bonds for Higher Education building projects without any references to other parts of the Constitu­tion. Other additions to the Article say, "Notwithstanding the limitations contained in Section 7 (or Sections "7 and 8) of Article XI . . . ." The Legislature probably intended the language used by it in the preparation of Article XI-E to grant similar exceptions, not a greater exception.

Although one can never be positive until the Courts have ruled, it is our opinion that, with proper safeguard to assure repayment, and with appropriate legislative finding of a public purpose, the Legislature may provide for use of Article XI-E bond proceeds for rehabilitation and reforestation of privately-owned land.

RELEASE OF LAND FROM ARTICLE XI-E "LIEN"

Good fiscal management requires that bonds be sold only in such amounts as can be effectively utilized in a given year or span of years pertaining to a particular project. Reforestation is a program which can be continued into the indefinite future. Soon after the passage of the Forest Rehabilitation Act, the State Forester faced a need to know whether a particular tract of land would be forever obligated to the repayment of bonds or only to such repayment as was involved in the issue for which funds were obtained for the rehabilitation and reforestation of that tract. Oregon Laws 1955, ch 115, amended ORS 530.280 to permit the Forester to "designate and keep records of the area of land on which the funds from particular issues of bonds have been expended for such reforestation." The Forester thereupon created subaccounts and treated as released any property benefitted by a given bond issue when that issue was repaid.

There is a rule of constitutional construction that a contemporary legislative interpretation which is continued and followed affords a strong presumption that the Constitution has been correctly interpreted. Oregon cases adhering to that rule of construction include State ex rel Gladden v. Lonergan , 201 Or. 163, 179, 269 P.2d 491 (1954) and Thielke v. Albee , 79 Or. 48, 53, 153 P. 793 (1916). While the 1955 act was not enacted immediately after Article XI-E, it was passed as soon as problems became apparent in the application of the statute implementing the Constitution.

Article XI-E provides for renewal or refunding of bonds issued without limit except as to a percentage of the taxable property of the state. To say that no tract of land would ever be free of the "lien" of the constitutional provision until all indebtedness is repaid, might result in perpetual encumbrance of the land. This inflexible approach would be alleviated only by the opportunity to exchange it for other land or to sell the land and to apply all the proceeds of sale toward extinguish­ment of the bonded indebtedness. This is irksome as to state-owned property, laborious as to county property and impossible as to privately-owned property. No private land owner would be able to allow the use of such money for reforestation of his land. The indebtedness might never be lifted.

The language pertinent to this question is: "The credit of the state may be loaned . . . in an amount which shall not exceed at any one time 3/16 of one percent of the true cash value of all the property in the state .... So long as any such indebtedness shall remain outstanding, the funds derived from the sale, exchange, or use of said lands , and from the disposal of products therefrom, shall be applied only in the liquidation of any such indebtedness ." (emphasis supplied.) We must assume that those who drafted that provision intended a workable, practicable result. Ambiguous language should be given an interpretation which makes the Constitution a living and useful instrument. Unless "such indebtedness" applies only to the bond issue which benefitted a particular area or tract of land, all benefitted lands could be subjected to perpetual restraint. That would be an unreasonable interpreta tion, and one which is not favored in the law. Therefore, it is probable that the subaccount device now used by the State Forester pursuant to law is a valid application of Article XI-E. After the bond issue which benefitted a given area of land has been repaid, the land is not subject to the "lien" of other bond issues.

LEE JOHNSON Attorney General

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1 Article XI-E, State Reforestation. Section 1. State empowered to lend credit for forest rehabilitation and re­forestation; bonds; taxation. The credit of the state may be loaned and indebtedness incurred in an amount which shall not exceed at any one time 3/16 of 1 percent of the true cash value of all the property in the state taxed on an ad valorem basis, to provide funds for forest rehabilitation and reforest tion and for the acquisition, management, and development of lands for such purposes. So long as any such indebtedness shall remain outstanding, the funds derived from the sale, exchange, or use of said lands, and from the disposal of products therefrom, shall be applied only in the liquidation of such indebtedness. Bonds or other obligations issued pur­suant hereto may be renewed or refunded. An ad valorem tax outside the limitation imposed by section 11, article XI, of this constitution shall be levied annually upon all property in the state of Oregon taxed on an ad valorem basis, in sufficient amount to provide for the payment of such indebted­ness and the interest thereon. The legislative assembly may provide other revenues to supplement or replace the said tax levies. The legislature shall enact legislation to carry out the provisions hereof. This amendment shall supersede all constitutional provisions in conflict herewith.

2 section 4 of Chapter 115, not codified in ORS, declared that if any part of the act is unconstitutional, the entire act would fall. Legislative history is sparse, but it is believed that the legislative purpose for this provision was to keep the financial provisions of ORS 530.210, 530.280 and 530.300 consistent with each other. (ORS 530.300 was repealed in 1969.)