Oregon Advisory Opinions November 04, 1944: OAG 44-159 (November 4, 1944)
Collection: Oregon Attorney General Opinions
Docket: OAG 44-159
Date: Nov. 4, 1944
Advisory Opinion Text
OAG 44-159.
Only legal voters qualified as electors under state law can vote on initiative measures in Monmouth, Oregon.
Municipal charter provision requiring six months residence in city to qualify as voter in city elections void in so far as such provision requires residence in excess of that required of electors by constitution.
Legal voters may sign initiative petitions although not registered.
District Attorney, Polk County
Dear Sir: It appears from your letter of November 2, 1944, that the City of Monmouth, which has a population of less than 2,000 inhabitants, has called a special city election for November 7, 1944, for the purpose of submitting to vote an initiative amendment to its city charter. You have requested the opinion of this office as to what residents of such city are qualified to vote on such initiative measure.
You state that Monmouth has not enacted any local procedure for the exercise of the initiative and referendum with respect to city measures. The manner of exercising the initiative power in the present instance is, therefore, prescribed by the general laws. Article IV, section 1a, Oregon Constitution. The general law applicable to such procedure is set forth in section 81-2115, O. C. L. A. Such section provides that the initiative measure shall be submitted "to the voters of the city or town." The question, therefore, narrows to this: What qualifications must a resident of Monmouth have to vote at city elections?
You state that section 11 of the city charter provides:
"No person shall be qualified to vote at any election in the city of Monmouth who is not entitled to the privileges of an elector under the general laws of the state of Oregon, and who has not resided within the corporate limits of said city as herein bounded, for a period of six months next preceding the date of such election."
Clearly, therefore, there is no distinction between the qualifications of an elector at a city election in Monmouth and the qualifications of an elector under the general laws of the state, excepting that a residence requirement of 6 months within the city is added.
Section 2, Article II, of the Oregon Constitution, provides:
"In all elections, not otherwise provided for by this constitution, every citizen of the United States, of the age of 21 years and upwards, who shall have resided in the state during the 6 months immediately preceding such election, and who shall be duly registered prior to such election in the manner provided by law, shall be entitled to vote, provided such citizen is able to read and write the English language. * * * The legislative assembly, or the people through the initiative, may by law require that those who vote upon questions of levying special taxes or issuing public bonds shall be taxpayers."
The latter provision is pertinent. By the application of the rule of statutory construction expressio unius est exclusio alterius, the constitutional provision quoted limits the right of the legislative assembly or the people through the initiative to put additional qualifications on the privilege of voting.
I find no other provision of the constitution prescribing different qualifications for voters on initiative petitions in cities. Neither does it appear from the general laws that the legislative assembly has attempted to provide any different qualifications.
It is true that the statute only requires legal voters to sign initiative petitions and for that purpose it has been held that a legal voter is not necessarily a registered voter. State ex rel. v. Dalles City, 72 Or. 337; State ex rel. Carson v. Kozer, 105 Or. 486.
Conceivably a legal voter may fail to qualify himself to vote in a particular election by failing to register in the manner required both in the constitution and in the general laws.
I am, therefore, of the opinion that only those voters in the City of Monmouth who are duly registered are qualified to vote on the initiative measure in the present instance.
You further inquire what length of residence within the city must a voter have had in order to vote? This inquiry arises by reason of the following portion of the charter provision above quoted:
"and who has not resided within the corporate limits of said city as herein bounded, for a period of six months next preceding the date of such election."
In an opinion of this office issued on November 15, 1922, and appearing in Biennial Reports and Opinions 1922-1924, page 42, the pertinent rule was stated in the following language:
"It is, therefore, my opinion that any requirement in a city charter of residence for any particular period of time, as qualification for voting, or any other requirement for such purpose, in addition to those expressed in section 2 of article II of the constitution, is void and of no effect."
That opinion was based upon the holding of the Oregon Supreme Court in the case of Livesley v. Litchfield, 47 Or. 248.
I am, therefore, of the opinion that the portion of the city charter of Monmouth which fixes a residence requirement for voting in addition to that prescribed by the constitution, is void.