Oregon Advisory Opinions February 19, 1954: OAG 54-13 (February 19, 1954)
Collection: Oregon Attorney General Opinions
Docket: OAG 54-13
Date: Feb. 19, 1954
Advisory Opinion Text
OAG 54-13.
Chairman, State Tax Commission
In your inquiry of November 30, 1953, you call attention to the first sentence of subsection (2) of § 11, Article XI, of the Oregon Constitution, as amended at the state-wide general election of November 2, 1952, which reads as follows: "The question of establishing a tax base shall be submitted at a regular general or primary election."
Your first question relating thereto is: "Where the election statutes of a taxing unit such as fire protection districts provide for a 'general' election, is this a 'regular general (or primary) election' within the meaning of § 11, Article XI, of the Constitution?"
1. The constitutional amendment to which you refer was prepared at the instance of the 1951' legislative assembly as H.J.R. No. 9 and the problem of interpretation is basically one of determining the intention of the legislature, as in the case of a statute. Title & Trust Co. v. Wharton, 166 Or. 612. The answer to your first question turns on whether or not the words "at a regular general or primary election" are restricted to state-wide elections only.
2. It is patent from an examination of amended § 11, Article XI, that the legislature intended it to apply to all taxing districts: ". . . state, any county, municipality, district or body to which the power to levy a tax shall have been delegated . . . ."
3. The legislature must be presumed to have known the law as it existed at the time it proposed H.J.R. No. 9. Cabell v. City of Cottage Grove, 170 Or. 256. At that time, as now, § 14, Article II, of the Oregon Constitution, provided that "the regular general biennial election in Oregon for the year A.D. 1910 and thereafter shall be held on the first Tuesday after the first Monday in No
vember." An examination of the law relating to taxing bodies other than the state shows that the provisions for regular elections fall into three categories: (a) The election dates for some taxing districts fall on the same date as the state biennial election (e.g., cities and towns. Constitution, Article II, § 14a; O.C.L.A., § 81-306). (b) The date for the regular election with some other taxing districts falls on the same calendar day as the state-wide biennial election, but annually instead of biennially (e.g., sanitary districts, Oregon Laws 1949, chapter 378, § 8). (c) A substantial number of taxing districts have regular elections but the statutes provide for times and places other than those required under the state-wide biennial elections (e.g., school districts which hold an "annual school meeting" "once every year" "on the third Monday in June . . . .", O.C.L.A., § 111-901, et seq.; rural fire protection districts in which "a general election shall be held . . . on the first Monday in December of each year," Oregon Laws 1951, chapter 395, p. 617, and ORS 478.220; drainage districts, O.C.L.A., § 123-109; irrigation districts in which ". . . an election shall be held in each district on the second Tuesday in November of each year . . . ," O.C.L.A., § 125-205).
4. It is immediately apparent from the foregoing that if the legislature intended the words "at a regular general or primary election" to be restricted to state-wide elections, substantial changes in the laws of numerous taxing districts would have to be made if and when H.J.R. No. 9 was approved by the voters. However, the language used does not compel this interpretation. No case has been found where the words "regular general or primary election" were considered but there are many cases interpreting the words "general election" and "regular election." Each of the cases relating to "general election" or "regular election" must be read in connection with the particular statute being construed, and the results vary, but there is a substantial body of authority which holds that the words used in the above-cited amendment are applicable to local general elections. See State v. Superior Court for Chehalis County, 70 Wash. 545, 127 P. 120, in which the court held that a "general election" meant any election where there had been a general expression of the public will, whether it be a state, county or city election, a "general election" being one held at stated intervals to fill the terms of public officials regularly expiring under the law, at which every qualified elector has the right to participate. In this case a city election meeting the requirements was held to be a general election. Idem: State v. Superior Court of Lewis County, 70 Wash. 670, 127 P. 313. In State v. Nebraska City, 123 Neb. 614, 243 N.W. 858, the words "regular election," were interpreted to include both a city and a state election. In Allen v. Tobin, 155 Neb. 213, 51 N.W. (2d) 338, the court states in passing that "any election at which there is a general and popular expression of public will, whether it be a state, county or city election, is a general election." Our Oregon supreme court has recognized that the words "general election" may have different meanings, depending on the context. Henderson v. City of Salem, 137 Or. 541. See also People v. Billig, 72 Colo. 209, 210 P. 324.
5. If it had been the intention of the legislature to restrict the vote on the establishment of a tax base by each and every taxing district to a state-wide general or primary election, clear and customary language was available for its use. In fact, in H.J.R. No. 9, in which the amendment here discussed was placed before the voters, the legislature itself used properly descriptive language for such purpose in its resolution clause which reads: "Be it further resolved, that the proposed amendment be submitted to the people for their approval or rejection at the next regular biennial election held throughout the state; . . . ." (Emphasis supplied) In the same session of the legislature the members of the assembly enacted Oregon Laws 1951, chapter 395, relating to rural fire protection districts, using the language "at any general election held in the district," indicating that the words "general election" were not deemed to be words appropriate only to state-wide elections.
6. It is a well-known rule that the contemporaneous construction of a statute by the legislature is very persuasive in leading the courts to adopt the same construction. Thielke v. Albee, 79 Or. 48; see also Sprague v. Fisher, 184 Or. 1, at p. 79 et seq. Although we are here dealing with a constitutional amendment, inasmuch as the amendment was sponsored by the legislative assembly, it is believed that the same rule would be appropriate. After the enactment of the amendment to § 11, Article XI, of the Constitution, as set out in H.J.R. No. 9, the legislature was confronted with the possible alternatives in construction of the words "at a regular or general primary election" to which you have called attention. If the 1953 legislative assembly had interpreted the words quoted as referring only to a state-wide general or primary election, it would have been incumbent upon the legisla
ture to amend the statutes relating to school districts, rural fire protection districts, drainage districts and others above mentioned in which the provisions for regular elections set different times and places than those provided by the laws relating to state-wide biennial elections. The legislature did not follow this interpretation. On the contrary, as you have pointed out, it enacted chapter 286, Oregon Laws 1953, which relates particularly to the establishment of tax bases for school districts, providing for an election to establish a new tax base for the district at a time other than the first Tuesday after the first Monday in November of even numbered years. In the same session it provided in Oregon Laws 1953, chapter 369, § 1, that "a general election shall be held in the rural fire protection district on the first Monday in December of each year" at which the polls will be open from 2:00 to 8:00 p. m. or, by resolution, from 8:00 a. m. to 8:00 p. m. This constitutes the regular, general meeting of the fire district. Again, at the same session, in Oregon Laws 1953, chapter 176, the legislature provided for a local option vote which "shall be held only upon the next regular November biennial election day." These acts illustrate the legislature's familiarity with appropriate language and its interpretation of the amendment to § 11, Article XI, of the Constitution, as permitting it to establish general elections, including those for tax purposes, on local levels.
7. Our supreme court has frequently held that if the language of a statute admits of two constructions, one absurd or mischievous, and the other reasonable and wholesome, the courts will adopt the latter construction. State v. Gates, 104 Or. 112; Swift & Co. v. Peterson, 192 Or. 97. In the present instance, the adoption of the restrictive interpretation of the words "at a regular general or primary election" as meaning a state-wide election would completely foreclose a number of taxing districts from raising their present tax bases. On the other hand, an examination of the Official Voters' Pamphlet issued in connection with the November 1952 state general election, discussing H.J.R. 9, indicates a recognition of the need for increased tax bases in many instances, due to increasing inflation or rapid population growth. The proponents sought to obviate the necessity of holding special elections each year to authorize special levies, thus eliminating the cost of such special elections, at the same time to obtain a truer reflection of the wishes of the voters (who attend regular general elections in greater numbers than they attend special elections). (The Oregon supreme court has sanctioned reference to the Official Voters' Pamphlet to aid in ascertaining the intent of proposed legislation. Eugene School District No. 4 v. Fisk, 159 Or. 245; Allen v. Multnomah County, 179 Or. 548, 562.) It must also be remembered that the boundaries of many taxing districts take in parts of several voting precincts and great practical difficulties would be encountered in incorporating elections of such districts into the state-wide biennial election. It is thus seen that the mischief sought to be remedied by the constitutional amendment is eliminated by the broader construction of "regular general or primary election," but hardship will follow a narrow construction thereof; in such case the broader construction should be followed.
For the reasons given, it is my opinion that the words "regular general or primary election" apply to the regular general elections now provided by law for all the taxing districts, and the words are not restricted to the regular November biennial state-wide election.
In your second question you ask: "Is the election or meeting designated as the 'annual school election' or 'annual school meeting' which is held in certain districts on the third Monday in June of each year a 'regular general . . . election' within the meaning of § 11, Article XI of the Constitution?"
It is apparent from a reading of the election statutes that the word "general" is used to distinguish stated elections from the provisions frequently made for special elections. An election is a general one "if, by operation of law, it invariably occurs at stated intervals without any superinducing cause except the efflux of time." Marsden v. Hustocker, 48 Or. 90, 94. Although, as you have pointed out, the words used are "annual school meeting," nevertheless the date thereof is fixed and it comes within the foregoing definition. It is my opinion that the annual school meeting may be denominated a regular general election. (The case of Breding v. Williams, 37 Or. 433, decided in 1900, has not been overlooked; this case contains language tending to an opposite conclusion, but it is believed to be distinguishable upon the facts.)
In your third question you ask: "Does chapter 286, Oregon Laws 1953, contemplate that the question of establishing a new tax base for a school district be submitted at (a) an annual school election, or (b) on the same date as a state-wide regular general or primary election?"
On the basis of my answers to your first and second questions, it is my
opinion that chapter 286, Oregon Laws 1953, contemplates that the question of establishing a new tax base for a school district must be submitted at an annual school election. The act itself does not make this clear, but read in connection with amended § 11, Article XI, of the Constitution, there is no doubt that the election must be set, after proper notice, on the third Monday in June of the year stated in the notice.
My answers to the foregoing preclude the necessity of answering your fourth, fifth and sixth questions, setting up hypothetical situations relating to chapter 286, Oregon Laws 1953.