Oregon Advisory Opinions March 28, 1950: OAG 50-38 (March 28, 1950)
Collection: Oregon Attorney General Opinions
Docket: OAG 50-38
Date: March 28, 1950
Advisory Opinion Text
OAG 50-38.
District Attorney, Clackamas County
Dear Sir: In your letter of March 24, 1950, you informed us that on May 19th, the date of the primary election, Clackamas county is contemplating the submission to the voters of the county the matter of raising money over and above the 6 per cent limitation, in accordance with § 110-1104, O. C. L. A., as amended by chapter 511, Oregon Laws 1947. During the same election, the voters will also have submitted to them a nonpartisan ballot for the election of a circuit judge. You ask our opinion on the following question:
"* * * is it permissible to submit the matter of exceeding the 6% limitation on the non-partisan ballot, which ballot, of course, is submitted to all the voters?"
Chapter 11, title 110, O. C. L. A. (chapter 150, Oregon Laws 1917), authorizes the calling of elections for the purpose of increasing tax levies over
the constitutional limitation in the state at large, counties, municipalities and certain districts. Section 110-1104, O. C. L. A., as amended by chapter 511, Oregon Laws, 1947, empowers a county court or board of county commissioners to enter an order for a special election on the said question, certifying its reason to the county clerk not less than 35 days before the first Tuesday after the first Monday in November, or the third Friday in May of any year, or the day specified for the special election in said order. The county clerk is directed to issue election notices to the judges and clerks of election and thereafter the election thus called is to be held on that date in the same manner as other general or special elections are held.
Section 110-1105, as amended, provides in part that whenever a regular election is held, the notice of election to increase the tax levy, which is required to be given by each county clerk, may be included in the general notice of such election.
The only provision in the foregoing chapter relating to the form of ballot to be used at an election called for the purpose of voting to exceed the 6 per cent limitation, is § 110-1112, O. C. L. A., which provides:
"The question of increasing any tax levy when submitted to the vote of the people as herein provided, shall be stated on the ballot by including in such question the statement of the reasons for increasing such levy made by the tax levying body of the state, county, district or municipality, or by the board, officer or officers upon whose certificate such election is called and held, and the votes of the people shall be given upon the answers yes and no in the usual manner of submitting questions to vote of the people. * * *"
There is nothing in the foregoing law authorizing the inclusion of the question of increasing a tax levy beyond the constitutional limitation in the nonpartisan judiciary ballot used in the primary election, unless it is the provision in § 110-1104, as amended, that
"* * * Thereafter the election thus called shall be held * * * in the same manner as other general elections are held * * *."
However, an examination of the general election laws, and particularly the nonpartisan judiciary act, reveals that separate ballots must be used. Section 8-1205, O. C. L. A., as amended by chapter 480, Oregon Laws 1949, provides:
"At all primary elections at which candidates for judge of any of the herein enumerated courts are to be nominated, where two or more petitions or two or more declarations of candidacy for nomination for candidate for judge of any of said courts have been filed, there shall be prepared and furnished by the several county clerks separate ballots upon which shall be placed the names of the candidates for such office * * * which ballot shall be entitled 'Judiciary Ballot,' and shall contain no other designation. * * *" (Emphasis supplied)
The above quoted section is sufficient in itself to show that at the primary election the nonpartisan judiciary ballot must be a "separate ballot" and can not contain issues such as the one suggested in your letter. The nonpartisan judiciary act is a special statute providing for a new and unique method of nominating and electing judges, and to the extent that it applies or is operative it excludes all other methods: Howell v. Bain, 176 Or. 187, 194.
A further factor to be considered is that while the official ballot to be used in the general election held in November may include a constitutional amendment or other question to be submitted to the vote of the people (§ 81-1503, O. C. L. A.), yet no such provision is contained in the law relating to the preparation of ballots in the primary election (§ 81-603, O. C. L. A., as amended by chapter 197, Oregon Laws 1949). Therefore it appears that while the county court of Clackamas county is authorized to submit the matter of exceeding the 6 per cent constitutional limitation to the voters at the primary election, a separate ballot on this question must be prepared and presented to the voters at that time. Beyond question it is not permissible to include the same on the nonpartisan judiciary ballot, and accordingly your question is answered in the negative.