Oregon Advisory Opinions March 02, 1948: OAG 48-43 (March 2, 1948)

Oregon Attorney General Opinions

1948.

OAG 48-43.

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Charters and ordinances of incorporated cities and towns having a population of over 2000 inhabitants are amended by section 14a, Article II, constitution of Oregon, and section 81-2113, O. C. L. A., and it is the mandatory duty of the governing bodies thereof to make provision that the ward boundary lines within such cities and towns shall conform to the lines of such voting precincts, or groups of precincts, therein as have been established by the county court in which such city or town is situated.

Dear Sir: In your letter dated February 25, 1948, with which you enclosed two maps of Dalles City, Oregon, one showing the boundaries of the city wards and the other showing the county voting precincts, you state:

"The County Court of Wasco County has been required by the Mayor and Council of Dalles City to have the various precinct boundary lines conform to the ward boundary lines in order that elections for Dalles City be held at the same time and the same place as the elections for state and county officers are held, and that the judges and clerks for such state and county elections shall be the judges and clerks for Dalles City elections.

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"Dalles City is divided into four wards. Section 4 of the Charter of Dalles City reads as follows:

" 'For purposes of municipal representation, Dalles City is hereby divided into four wards, designated and bounded as follows: . . .'

"The last time the ward lines of Dalles City were changed was by Charter amendment, adopted June 21, 1915.

"Heretofore, City elections in Dalles City have not been held at the same place as the elections for state and county officers and Dalles City has appointed its own judges and clerks."

You call attention to sections 81-2113 and 81-2114, O. C. L. A., and also state that Dalles City is desirous of complying with said sections, and request my opinion as to:

"Whether or not Section 81-2113 in effect amended the Charter of Dalles City by conferring the power and authority upon the Council to change the ward boundary lines and eliminated the necessity of submitting such proposed change to the electors of said City."

By vote, the people at an election held for that purpose on June 4, 1906, adopted an amendment to Article XI, section 2 of the constitution of Oregon, which provides in part:

"* * * The legislative assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter, subject to the constitution and criminal laws of the state of Oregon, * * *."

At an election held on June 4, 1917, Article II of the constitution was amended by having section 14a added thereto, which provides:

"Incorporated cities and towns shall hold their nominating and regular elections for their several elective officers at the same time that the primary and general biennial elections for state and county officers are held, and the election precincts and officers shall be the same for all elections held at the same time. All provisions of the charters and ordinances of incorporated cities and towns pertaining to the holding of elections shall continue in full force and effect except so far as they relate to the time of holding such elections. Every officer who, at the time of the adoption of this amendment, is the duly qualified incumbent of an elective office of an incorporated city or town shall hold his office for the term for which he was elected and until his successor is elected and qualified. The legislature, and cities and towns, shall enact such supplementary legislation as may be necessary to carry the provisions of this amendment into effect." (Italics the writer's)

On January 14, 1919, in the case of State ex rel. v. Kellaher, 90 Or. 538, 543, 544, the Supreme Court, speaking through Mr. Chief Justice McBride, concerning the effect of section 14a, Article II of the constitution upon a section of the existing charter of the city of Portland providing for the time of holding city elections, said:

"* * * A constitutional provision may be self-executing as to part of its provisions and require the aid of legislation as to others. So far as it relates to the date upon which elections are to be held the amendment is definite, self-executing and mandatory. 'Incorporated cities and towns shall hold' their elections at the time therein specified. And again, 'All provisions of the charter and ordinances of incorporated cities and towns pertaining to the holding of elections, shall continue in full force and effect except so far as they relate to the time of holding such elections.' The implication being that as to the time of holding such elections such charters were repealed. There can be no logical escape from this conclusion. The requirement that cities and towns should enact such supplementary legislation, as might be necessary to carry the provisions of the amendment into effect, is also mandatory and was no doubt passed so as to require such corporations to provide the machinery necessary to carry on the election at the date specified. To prevent a vacancy occurring in an elective office between a possible earlier date for city election and the time for holding the general state election, it was provided that elective officers then in office should hold until their successors were elected and qualified; so that, if in a city theretofore holding its election, say in June, there were elective officers whose terms expired in June, such terms were by force of the amendment extended until November 5th, and until their successors had qualified."

On March 3, 1919, at the legislative session following the adoption of section 14a, Article II of the constitution, chapter 283, General Laws of Oregon 1919, "AN ACT to provide for carrying into effect the provisions of section 14a of Article II of the constitution of the state of Oregon relating to incorporated cities and towns holding their nominating and regular elections at the same time that primary and general elections for state and county offices are held;", was enacted, approved by the governor and filed in the office of the secretary of state and became effective May 29, 1919. Section 35 of chapter 283, Laws 1919, now designated as section 81-2113, O. C. L. A., provides as follows:

"The provisions of this act insofar as they relate to incorporated cities and towns, shall apply to incorporated cities and towns of this state having a population of over two thousand inhabitants, according to the last preceding United States census. The proper governing bodies of such cities and towns shall, not less than sixty days preceding the third Friday in May of the year 1920, make provisions that the various ward boundary lines within said cities or towns shall conform to the lines of such precincts, or groups of precincts, within such cities or towns as have been established by the county court of the county in which such city or towns may be situated." (Italics the writer's)

Section 36 of said chapter, now section 81-2114, O. C. L. A., provides in part:

"It is hereby declared to be the intention of this act to carry out the provisions of section

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14a of article 2 of the constitution of the state of Oregon, as adopted by a vote of the people of this state on June 4, 1917, in all incorporated cities and towns of the state having a population of over two thousand inhabitants, according to the last preceding United States census; and that in such cities and towns all elections for city or town officers shall be held at the same time and at the same place as the elections for state and county officers are held, and that the judges and clerks for such state and county elections shall be the judges and clerks for such city and town elections, and that as far as practicable, the ballots used for such state and county elections, as provided by law, be so arranged as to include the names of city officers and measures to be voted upon at such city or town elections, and it is hereby declared to be the purpose of this act that the provisions of the same be liberally construed to carry out the intention herein expressed; * * *." (Italics the writer's)

In the case of Klamath Falls v. Oregon Liquor Control Commission, 146 Or. 83, Mr. Justice Belt, speaking for the Court said at pages 92 and 93 of the reported opinion:

" * * * Notwithstanding the power delegated to cities under the Home Rule Amendment, they are still instrumentalities for the administration of the general laws of the state within their corporate boundaries. Under our constitutional system of government, a municipality is an agency of the State. In delegating authority under the Home Rule Amendment, it was not contemplated that a state be created within a state. Such is the doctrine announced in the well considered case of Straw v. Harris, 54 Or. 424 (103 P. 777), wherein the court in construing Art. XI, section 2 of the Constitution, said:

" '* * * and whatever may be the literal import of the amendments it cannot be held that the State has surrendered its sovereignty to the municipalities to the extent that it must be deemed to have perpetually lost control over them. This no state can do. The logical sequence of a judicial interpretation to such effect would amount to a recognition of a state's independent right of dissolution. It would but lead to sovereigntial suicide. It would result in the creation of states within the state and eventually in the surrender of all state's sovereignty all of which is expressly inhibited by Article IV, Section 3 of our national constitution. Power to enact local legislation may be delegated, but this of necessity, whether stated or not, is always limited to matters consonant with, and germane to, the general purpose and object of the municipalities to which such prerogatives may be granted.

" 'Municipalities are but mere departments or agencies of the State, charged with the performance of duties for and on its behalf, and subject always to its control. The state, therefore, regardless of any declarations in its constitution to the contrary, may at any time revise, amend or even repeal any or all of the charters within it, subject, of course, to vested rights and limitations otherwise provided by our fundamental laws. This, under the constitution as it now stands, may be done by the legislature through general laws only, and the same authority may be invoked by the people through the initiative by either general or special enactments; only the legislature being inhibited from adopting the latter method.'

"Rose v. Port of Portland, 82 Or. 541 (162 P. 498), and Lovejoy v. Portland, 95 Or. 459 (188 P. 207), strongly reiterate this doctrine and the court ever since has consistently adhered to the same." (Italics the writer's)

It is my opinion that pursuant to the provisions of Article II, section 14a of the constitution and section 81-2113, O. C. L. A., that, not only is the authority and power conferred upon the council of Dalles City to change the boundary lines within said city to conform to the lines of the voting precincts as established by the county court, but it is the mandatory duty of such "governing body" to do so.

Your question, therefore, is answered in the affirmative.