Oregon Advisory Opinions February 11, 1947: OAG 47-22 (February 11, 1947)

Oregon Attorney General Opinions

1947.

OAG 47-22.

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House Bill No. 101, pertaining to special elections in Portland School District No. 1, is a general law, and is therefore not violative of the Oregon constitutional provision prohibiting the enactment of special or local laws.

Dear Sir: In your letter of February 10, you state:

"The question has been raised in the House concerning the constitutionality of House Bill No. 101 pertaining to special elections in Portland School District No. 1."

You ask my opinion relative thereto.

The question you propound is somewhat general. I assume, however, you have reference particularly to the qualifications of electors and the limitation of the act to counties of 100,000 population or more, and whether or not these provisions are in violation of the Oregon constitution. The question involved is whether or not the act operates as a general law throughout the state, or whether it is limited in its application to a portion of the state and thereby a special or local law.

Our Supreme Court held in many cases, beginning with the early case of Ladd v. Holmes, 40 Or. 167, wherein an eminent jurist, Justice Wolverton, speaking for the court, on page 172 summed up the situation as follows:

"* * * It is insisted that by the express provisions of the act it was intended to have operation in the City of Portland alone,---that being the only city with a population of ten thousand,---and that it can never extend to or include other cities, should they come to have or possess as great or larger population. If such is the true intendment of the act, the point would be well taken, as it would then be local, or, as the term is defined by Mr. Sutherland, 'special as to place': Sutherland, Stat. Const. sec. 127. 'A local act,' says Mr. Justice Lord, in Maxwell v. Tillamook County, 20 Or. 495, 500 (26 Pac. 803, 804), 'applies only to a limited part of the state. It touches but a portion of its territory, a part of its people, or a fraction of the property of its citizens.' A law may be general, however, and have but a local application, and it is none the less general and uniform, because it may apply to a designated class, if it operates equally upon all the subjects within the class for which the rule is adopted; and, in determining whether a law is general or special, the court will look to its substance and necessary operation, as well as to its form and phraseology: (Citing cases)."

Since that time our Supreme Court has upheld the principle enunciated above. The question was before the court in Tichner v. Portland et al., 101 Or. 294, wherein the principle was reiterated, and the court held directly that a classification of cities according to their population is constitutional under an organic law that prohibits special or local legislation, and quoted from a syllabus in the case of Kilgore v. Magee, 85 Pa. St. 401, as follows:

"The legislature has power to classify cities according to the number of their population, and the fact that some of these classes contain each but one city does not make any classification invalid or bring it within the constitutional provision of section 7 of Article III of the constitution, which forbids local or special legislation."

This doctrine was also before our Supreme Court in the case of City of Portland v. Welch, 154 Or. 286, wherein Mr. Justice Belt quoted, with approval, from the case of In re Boalt, 123 Or. 1:

" 'It is in consonance with our whole scheme of government that the legislature or the people of the whole state may enact a general law governing the exercise of municipal authority in matters not strictly local or municipal, but pertaining in part to the general welfare of the state, or the exercise of sovereign authority'."

Article II, section 2, of the constitution of Oregon, reads as follows:

"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 six months immediately preceding

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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 legislature, or the people, through the initiative, may prescribe the means of testing the ability of such citizen to read and write the English language. Any act which has been passed by the legislative assembly, and which purports to execute and carry into effect the provisions of this section, shall be deemed to have been passed pursuant to, and in accordance herewith, and hereby is ratified, adopted and confirmed, the same as if enacted after the adoption of this amendment. 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."

This provision of the constitution was referred to by Mr. Justice Wolverton in Harris v. Burr, 32 Or. 348, as follows:

"* * * The elective franchise conferred by section 2, article II, * * * was designed only to govern in all general and special elections not otherwise provided for by the constitution, and applies to the election of all officers known to the constitution, as well as to such as may be provided for thereunder aside from those provided for under the special power of the legislature to establish a uniform and general system of common schools."

In Loe v. Britting, 132 Or. 572, our Supreme Court held that the constitution of the state of Oregon, as applied to the legislative department, is "limitation and not grant of power", and unless restrained by some constitutional provision of the state or federal constitution the power of the legislative department to enact laws in respect to matters under consideration is unlimited. I find nothing in the constitution contrary thereto.

It is my opinion that the act is a general law operating in a county classified to contain 100,000 population or more, and is not restrictive in its scope. That is to say, other counties may come into that classification so that it will operate not only in one county but in other counties when they have attained the required number of population.

I would suggest that in section 7, line 8, following the word "for" and before the word "county", the words "state and" be inserted, so as to read "state and county officers". The term "public officers" may be used. However, this is merely as a precaution against a probable attack.

Without invading the province of the legislature, it occurs to the writer that if, in its wisdom, it should see fit to apply the provisions of the act to the entire state, it would avoid much confusion, turmoil and litigation which often arises out of some of the elections we have had in the past, involving the qualifications of electors in school districts at special elections.

It is my opinion that the act as drawn, if enacted, is valid and constitutional.