Oregon Advisory Opinions February 28, 1952: OAG 52-20 (February 28, 1952)
Collection: Oregon Attorney General Opinions
Docket: OAG 52-20
Date: Feb. 28, 1952
Advisory Opinion Text
OAG 52-20.
District Attorney, Umatilla County
Dear Sir: In your letter of February 25, 1952, you informed us that the
county court proposes to submit to the voters, at the general primary election, May 16, 1952, the question of whether or not Umatilla county shall levy taxes serially outside the limitations imposed by Article XI, § 11 of the constitution of the state of Oregon, in a designated sum annually for five years for the purpose of providing funds with which to maintain, repair and construct permanent county roads and to acquire and repair equipment for such purposes. You state that the election will be called pursuant to chapter 453, Oregon Laws 1945, which provides in part:
"Section 4. Elections held within counties for the purposes stated in this act shall be called by the county courts or boards of county commissioners thereof and be held in the same manner and at the same times at which elections may be called and held under the provisions of sections 100-1610, O.C.L.A., and related code sections; * * *." (Emphasis supplied)
It is noticed that the foregoing act adopts by reference the procedure outlined in § 100-1610, O.C.L.A., and related sections. At the time of the enactment of chapter 453, Oregon Laws 1945 § 100-1610 provided that a county court on its own motion may submit the question of issuing bonds "at any general election" and no authority was given for calling a "special election" on motion of the county court except in counties over 100,000 or more population. This section was amended by chapter 407, Oregon Laws 1949, so as to provide as follows:
"The county court of its own motion may submit the question of issuing bonds * * * at any general election or at any special election called for that purpose as hereinafter provided. This may be done by an order of the county court which shall be entered in the jourial at least forty days next preceding any such election, which order shall set out the amount of bonds proposed to be issued, the length of time they shall run, and the maximum rate of interest they shall bear. * * * If a special election is called it shall be held at a time to be fixed by the court, which shall not be less than twenty nor more than forty days after the date of making the order. * * * " (Emphasis supplied)
(While you did not raise the question, we assume that the legislature by its reference to § 100-1610 and related sections, intended to include the latter amendments to those sections. A legislative declaration to this effect is found in chapter 314, Oregon Laws 1951, § 5. There is, however, some authority to the contrary. See Noble v. Noble, 164 Or. 538, 551, and authorities cited.)
Your request for an opinion relates solely to the time when the order calling the election by the county court shall be entered, to-wit:
"* * * as to whether for this purpose the order calling the election, by the County Court, may be entered at least forty days preceding the election, or if it shall be deemed a special election which shall be called to be held at a time to be fixed by the Court not less than twenty, nor more than forty days after the date of the order. In other words, should the order calling the election be entered more than forty days preceding the election, or not less than twenty, nor more than forty days preceding the election."
It has been repeatedly held by the courts that a primary nominating election is a general election in this state: Taylor v. Multnomah County, 119 Or. 123; Hanson v. Malheur County, et al, 160 Or. 579. However, the Oregon Supreme Court has likewise held that an election for the issuance of road bonds is a special election although held on the same day by the same officers as a general election: Wilson v. Wasco County, 83 Or. 147; Norton v. Coos County, 113 Or. 618, Hanson v. Malheur County, supra; Opinions of the Attorney General 1944-1946, p. 414; 1946-1948, pp. 273, 452. But in determining whether or not an election is special or general, regard must be had to the subject matter as well as the date of the election; Norton v. Coos County, 113 Or. 618. As pointed out in Henderson v. City of Salem, 137 Or. 541, 552:
"Thus it will be seen that an election may be general as to time. It may be general as to purpose. It may be general as to territory, yet special as to time and purpose. It may be general as to time, purpose and territory, and yet special as to electors. * * *"
In construing the terms "general election" and "special election" as contained in § 100-1610, as amended, supra, it is our opinion that the legislature was using the terms primarily in the sense of the "time" of conducting the particular elections. In a sense, every election called by a county for voting upon the question of increasing its tax levy beyond the constitutional limitation is a "special election" although it may be held on the same day and by the same officers as a general election. Opinions of the Attorney General, 1944-1946, p. 414. It is therefore apparent that when the legislature prescribed the procedure for the manner and time of entering the order of the county court calling the election for this purpose, it sought to distinguish between elections that regularly occur on a day designated by law from those special elections held at a time fixed by the county court other than general elections.
Since your proposed election will be held at a time designated by law, to wit, the primary election, it is our opinion that it is a "general election" as the term is used in § 100-1610, O.C.L.A., and that, therefore, the order of the
county court calling the election shall be entered in the journal at least forty days next preceding such election.