Oregon Advisory Opinions September 07, 1945: OAG 45-166 (September 7, 1945)
Collection: Oregon Attorney General Opinions
Docket: OAG 45-166
Date: Sept. 7, 1945
Advisory Opinion Text
OAG 45-166.
In an irrigation district contracting with the United States the qualifications of voters in district elections are legal age and ownership of at least four acres of land. The voting privilege is exercised by the record holder of title, and three tenants in common of five acres may not all vote. Nor does the statute provide for delegation of one to vote for the others, or for a trustee to represent the owners. Two tenants in common can, if they choose, convey their interests in trust to the third, who may exercise the voting privilege.
Dear Sir: Your inquiry under date of September 1 necessitates a construction of the laws governing elections in irrigation districts, to determine the rights of certain owners of land as tenants in common. You state that A, B and C own equal undivided interests in five acres of land within an irrigation district which is contracting with the United States for water supply; and you wish to know whether or not those three owners are qualified to vote in an election for a director of the district.
Qualifications of voters in an irrigation district contracting with the United States are set out in § 125-101, O. C. L. A., as amended by chapter 347, Oregon Laws 1941. Principally, they are legal age and "bona fide" ownership, as shown by county records, of at least four acres of "land situated within, and assessed by, the district." The voting privilege is in the land and is exercised by the record holder of title. See, in this connection, Opinions of the Attorney General, 1924-1926, page 38; 1938-1940, page 497; 1944-1946, 189 (June 2, 1945, in re East Fork Irrigation District); and, with reference to elections in soil conservation districts, see Opinions of the Attorney General, 1940-1942, page 99. The statute does not provide any method by which tenants in common may delegate to one of their number authority to vote for them in an election held by an irrigation district. Therefore, A, B and C have no authority to vote, separately or jointly.
You have further asked "whether or not any one of the three would be qualified to vote for director in said irrigation district". The answer is that one of the three would be qualified to vote, if the other two tenants in common would execute conveyances of their undivided interests to him (in trust, if so desired), constituting him the owner of record of the five acres. The statute does not provide specifically for voting by a trustee, and therefore the three tenants in common could not obtain a vote by merely naming one of themselves as trustee, attorney in fact or voting representative for the other two. Representatives of owners for the purpose of voting, listed in the statute, are: guardians, administrators, executors, and no others. But legal ownership of the required amount of land entitles the record owner to a vote. The fact that a beneficial interest in others may attach to a legal title is no deterrent to the exercise of that right. The recording of the trust instrument would not affect the voting privilege.
The bona fides of the suggested arrangement is not open to challenge. A, B and C are now the actual owners of the five acres as tenants in common. If two of them choose to convey their interests in trust to the third, there is no reason in conscience or law why they should not. It is obvious that the execution of the necessary instruments and the unwillingness of tenants in common to part with their legal title will not, in ordinary circumstances, seem justified by the one vote made available. The procedure indicated is perhaps awkward, and certainly cumbersome, but no other
solution can be offered, in view of the present restrictions of the statutes providing for the organization and conduct of irrigation districts.