Oregon Advisory Opinions July 08, 1947: OAG 47-137 (July 8, 1947)
Collection: Oregon Attorney General Opinions
Docket: OAG 47-137
Date: July 8, 1947
Advisory Opinion Text
OAG 47-137.
County court can submit to voters the question of exceeding tax limitation only in the manner and at the time prescribed by law. The question of authorizing a county road bond issue in excess of debt limitation can be submitted at any general election.
A special election on measures submitted by the legislative assembly is a general election.
Dear Sir: In your letter dated June 30, 1947, you request my opinion as to whether the county court
". . . may legally call a special election of the legal voters of the County to be held on the 7th day of October, 1947 (the date of the General State election) for the purpose of authorizing a special tax levy of 10 mills in excess of the 6% limitation upon the taxable property of the County for the next five years to provide funds for the construction of new county roads, the improvement of existing county roads and the purchase of such machinery and equipment as in its judgment may be necessary to carry out such road program."
Article XI, section 10 of the constitution provides:
"No county shall create any debt or liabilities which shall singly or in the aggregate, with previous debts or liabilities, exceed the sum of $5,000, except to suppress insurrection or repel invasion or to build or maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of a majority of those voting on the question, * * *"
Article XI, section 11 of the constitution provides:
"Unless specifically authorized by a majority of the legal voters voting upon the question neither the state nor any county, municipality, district or body to which the power to levy a tax shall have been delegated shall in any year so exercise that power as to raise a greater amount of revenue for purposes other than the payment of bonded indebtedness or interest thereon than the total amount levied by it in any one of the three years immediately preceding for purposes other than the payment of bonded indebtedness or interest thereon plus 6 per centum thereof; * * *"
Article IV, section la of the constitution provides, so far as pertinent, as follows:
"* * * The initiative and referendum powers reserved to the people by this constitution, are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws. * * *." (Italics writer's)
The general law providing the manner in which the county court shall exercise its power to increase the tax levy over the amount limited by the constitution is section 110-1104, O. C. L. A., which provides, in part, that:
"Whenever it is necessary in the estimation of the county court of any county to increase the amount of the tax levy over the amount limited by the constitution except on vote of the people, said county court shall certify to the county clerk that such increase, in its judgment, is necessary, stating the reasons therefor and the amount of such increase in not to exceed one hundred words. Such determination and certificate shall be made not less than thirty-five days before the first Tuesday after the first Monday in November in any year. * * *" (Italics writer's)
It was held in the case of Kneeland v. Multnomah County, 139 Or. 356, that the county court can not call an election for such purposes other than on the Tuesday after the first Monday of November of any year. Among other considerations the court said, at page 360:
"* * * There is nothing in the statute nor in the constitution authorizing the county commissioners to call a special election for this purpose, at any other time than on the first Tuesday after the first Monday of November of any year. Article XI, section 11, of the Constitution has not taken away from the legislature any of the powers conferred by Art. IV, section 1, regarding elections. 'There can be no valid election except in pursuance of constitutional or statutory authority': State ex rel. v. Kozer, 115 Or. 638 (239 P. 805), and cases therein cited; Henderson v. Salem, 137 Or. 541 (1 P. (2d) 128, 4 P. (2d) 321). Until such time as the people by the constitution or legislation shall give to the county commissioners power to call special elections at other times, the matter remains exclusively in the hands of the legislature to say how and when such elections shall be called. * * *"
See also Opinions of the Attorney General, 1938-1940, page 113; 1944-1946, page 414.
It is my opinion, therefore, that your question as specifically stated should be, and it hereby is, answered in the negative.
However, it appears that the provisions of section 100-1601, et seq. O. C. L. A., originally enacted as chapter 103, Oregon Laws 1913, would be applicable for the purpose to be accomplished by the county court. Said chapter 103 is
"An Act To authorize the county courts of the State of Oregon to issue and sell bonds or county warrants of the county for the purpose of building and maintaining permanent highways within the respective counties, * * * to authorize the several counties of the State of Oregon to hold special elections for the purpose of submitting to the voters of the county the question of the issuance of bonds and warrants; * * *"
Section 10 of said act, codified as section 100-1610, O. C. L. A., provides, in part:
"The county court of its own motion may submit the question of issuing bonds for the purpose mentioned in section 100-1601 at any general election * * *"
In the case of Bethune v. Funk, 85 Or. 246, when considering what consti-
tutes a "general election", the court said at page 250:
"* * * a 'general election' is one that regularly recurs in each election precinct of the state on a day designated by law for the selection of officers, or is held in such entire territory pursuant to an enactment specifying a single day for the ratification or rejection of one or more measures submitted to the people by the legislative assembly, and not for the election of any officer."
By chapter 541, Oregon Laws 1947, the legislature specified "Tuesday, the seventh day of October, 1947," as a day on which "a special election shall be held in the several voting precincts throughout the State of Oregon" for the purpose of voting on certain measures and "at such election only measures or enactments regulating taxation or exemption passed by said legislative assembly which are referred to the people at a special election by the legislative assembly * * * shall be submitted to the people for approval or rejection."
It is my opinion that the special election to be held on Tuesday, October 7, 1947, is a "general election" within the meaning of the provisions of said section 100-1610, O. C. L. A., which could be designated for the purpose of voting your bonds, but you will be required to "cause printed notices" of such special election to be posted and ballots printed, in conformity with the provisions of sections 100-1606 and 100-1607, O. C. L. A., respectively. After the issuance of such bonds has been authorized county warrants may be issued in lieu thereof as provided by section 100-1618, O. C. L. A.
In other words, you would use the machinery of the general election to carry on and conduct your special election.