Oregon Advisory Opinions January 27, 1941: OAG 41-16 (January 27, 1941)

OAG 41-16.

Hydroelectric laws do not permit of voting a third time upon the question of the formation of a peoples' utility district, without filing of new preliminary petition.

Gentlemen: Under date of January 23, 1941, you refer to that part of section 114-206, O. C. L. A., which reads as follows:

"* * * provided, that within two years after a majority of the qualified voters of a proposed peoples' utility district, voting at an election on the question whether or not such proposed district shall be created, have voted against such creation, the sponsors of such proposed district may, without the filing of preliminary and final petitions, request the hydroelectric commission to call an election to be held within the boundaries of the proposed district described in the final petition filed with said commission and which authorized the calling of the said election at which the majority of the qualified voters voted against such creation. * * *",

Section 114-206 provides for the holding of elections to vote upon the question of creating a district after the filing of preliminary petitions, a hearing and report on same by the hydroelectric commission, and the filing of voters' final petition. If upon the examination of such petition it is found to comply with the provisions of the act, the commission is required to call an election to be held not less than 50 days and not more than 60 days thereafter, at which the qualified voters within the district vote upon the question of whether or not there shall be created a district as prayed for in the petition. This is followed by the proviso referred to by you.

"The natural and appropriate office of the proviso being to restrain or qualify some preceding matter, it should be confined to what precedes it unless it clearly appears to have been intended to apply to some other matter. It is to be construed in connection with the section of which it forms a part, and it is substantially an exception. * * * 'when the enacting clause is general in its language and objects, and a proviso is afterwards introduced, that proviso is strictly construed, and takes no case out of the enacting clause which does not fall fully within its terms'. It should be within its letter and purpose. * * *"

Lewis' Sutherland Statutory Construction, 2nd Ed., Vol. 2, section 352, beginning at page 673.

Bull v. Kirk, 37 S. C. 395, 16 S. E. 151, 153.

Leader Printing Co. v. Nichols, 6 Okla. 302, 50 Pac. 1001, 1003.

Olson v. Heisen, 90 Or. 176.

State v. Young, 74 Or. 399, 406.

It is my opinion that the proviso in section 114-206 operates as an exception to the rule provided in that part of the