Oregon Advisory Opinions February 26, 1953: OAG 53-20 (February 26, 1953)

OAG 53-20.

This is to acknowledge receipt of your letters of February 9 and 13, 1953, referring to chapter 558, Oregon Laws 1947, providing for an election to establish zoning districts within counties in areas outside of incorporated cities. You point out that § 3, chapter 558, in describing the form of order and notice of election, requires that the order "must state that at such election there will be submitted to the resident freeholders of said district the proposition of whether or not the said resident freeholders of said proposed zoning district desire to form said district".

Section 5, however, provides "Each qualified elector within the proposed district for the period requisite to enable him to vote at a general election, shall be entitled to vote at the election above provided". The feeling is expressed that the above sections are in conflict and my opinion is requested as to the qualification of electors eligible to vote at said zoning district election.

Section 2, Article II, Oregon Constitution, provides:

"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 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 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." (Emphasis supplied)

Two facts are readily apparent, (1) that an election on the issue of the creation of a zoning district is not one in the category of those "otherwise provided for by this constitution" and (2) such an election does not involve a "question of levying special taxes or issuing public bonds". Hence if this act be construed to require that eligible electors also be "resident freeholders of said district" the same would be unconstitutional and contrary to § 2, Article II set forth above. Loe v. Britting, (1930) 132 Or. 572, 580; Veatch v. City of Cottage Grove, (1930) 133 Or. 144.

When two interpretations of a statute are possible, one being constitutional and the other unconstitutional, the former interpretation is preferred. Sutherland, Statutory Construction, 3rd Ed., Vol. 2, § 4509. With this as a premise, it is proper to point out that as used in the statute the terms "freeholder" and "qualified elector" are not convertible terms but each is used to indicate a distinct and separate capacity for different purposes. Opinions of the Attorney General, 1930-1932, p. 393; See also §§ 2 and 6, chapter 558, Oregon Laws 1947.

When § 5 provided that each "qualified elector" shall be entitled to vote, it is conclusively presumed, in order to sustain the constitutionality of the act, that it is meant to refer to those electors possessing the qualifications set forth in § 2, Article II, of the Constitution. Loe v. Britting, supra.

Specifically it should be stated that a "qualified elector" under § 5, chapter 558, need not be a "freeholder".