Oregon Advisory Opinions March 08, 1954: OAG 54-17 (March 8, 1954)

OAG 54-17.

In a letter to this office dated March 8, 1954, you state that ORS 221.190 provides that cities having a population of less than 2,000 may nominate candidates for city office by means other than a city primary nominating election and that some cities that will not nominate officers desire to establish a new city tax base under § 11, Article XI, of the Oregon Constitution, at the general primary election to be held May 21, 1954, in order that the new tax base will apply to the levy for the fiscal year beginning July 1, 1954. You ask: "Can a city that does not nominate candidates for city office at the general primary election submit the question of establishing a new city tax base at the general primary election to be held May 21, 1954?"

1. In an opinion of this office, No. 2662, dated February 19, 1954, I concluded that the language in subsection (2) of § 11, Article XI, of the Oregon Constitution, was intended to prohibit the use of special elections for the purpose of establishing new tax bases and the question of establishing a tax base must be submitted at "a regular general or primary election" of the taxing district.

2. Section 14-a, Article II, of the Oregon Constitution, provides in part:

"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...."

3. The legislative assembly in ORS 221.200, 250.030, 250.060, 250.230 and elsewhere has set up election procedures for cities and towns having a population of 2,000 or more. ORS 250.110(5) provides for submission on the official ballot of questions for "a vote of the people in the respective counties, districts and cities," in the general election, and ORS 249.320 provides that the same thing may be done on the primary ballot. Although no enabling legislation similar to ORS 250.230 and other sections mentioned has been enacted by the legislative assembly as to cities and towns with a population of less than 2,000, each has the power, under § 14-a, Article II, of the Oregon Constitution, to enact the necessary ordinances to achieve the same results:

"The legislature, and cities and towns, shall enact such supplementary legislation as may be necessary to carry the provisions of this amendment into effect."

4. If the mischief sought to be remedied by the 1952 amendment to § 11, Article XI, of the Oregon Constitution, is to be eliminated, the words used in the amendment must be construed to permit submission of the question of a new tax base by a city at the next general primary election. If a city requires a new tax base and is not permitted to adopt one at the general primary election to be held May 21, 1954, the city probably will be required to hold a special election to authorize a special tax levy in excess of its present tax base in order to raise the amount required to meet the financial needs of the city during the fiscal year beginning July 1, 1954. Submission of the question of adoption of a permanent new tax base would have to be delayed until the general election in November. But, if a new tax base is adopted at the May 1954 general primary election, a special election to authorize the special tax levy for the fiscal year beginning July 1, 1954, would be unnecessary. To require the holding of an unnecessary special election by construing the words of the constitutional amendment, "regular primary election", not to include the general primary election to be held in May 1954 appears clearly contrary to the purpose of the constitutional amendment as found in the opinion of this office, No. 2662, February 19, 1954, cited above.

Consequently, it is my opinion that a city may submit the question of establishing a new tax base under the amendment to § 11, Article XI, of the Oregon Constitution, at the May 21, 1954, general primary election even if the city does not nominate candidates for city office at that election.

Your second question is stated as follows: "If the answer to question 1 is in the affirmative, what procedure should be used in cities with a population of less than 2,000 to submit the question of a new tax base in the general primary election to be held May 21, 1954, where the boundaries of the county election precincts are not coterminous with the boundaries of the city?"

1. Your question recognizes the present status of the law found in the statutes cited above, which provides that in cities with a population of 2,000 or over, the county election precincts are coterminous with the boundaries of the city, and the county election boards also serve as city election boards, but in cities with a population of less than 2,000, the county election precincts may contain territory outside the city, in addition to territory inside the city, and there is no statutory requirement that the judges and clerks for the state and county elections be the judges and clerks for the city elections. However, although the legislature did not provide the supplementary legislation necessary to carry the provisions of § 14-a, Article II, of the Constitution, into effect in cities with a population of less than 2,000, that section of the Constitution expressly authorizes cities (as well as the legislature) to enact supplementary legislation for that purpose.

2. In my opinion, the following election procedure would meet the statutory and constitutional requirements for establishing a new tax base if it were adopted by a city with a population of less than 2,000 by appropriate supplementary city legislation:

Since there is no statutory provision relating to the use of the county election boards by cities with a population of less than 2,000, special arrangements will have to be made with the county clerk or county election boards to utilize the county election boards at the general primary election for the city's election on the tax base question. In addition,

a method will have to be prescribed to determine those voters who are not eligible to vote on the question of establishing a new city tax base where the county election precincts include territory outside the city limits. As to this second problem, your attention is called to the solution established by the legislature in ORS 261.515(2). The legislature recognized therein the problem faced by the election judges in determing which voters had the right to vote in a people's utility district election held concurrently with a general election held in the county, and the legislature provided for various aids, including the use of "a map showing the part of such precincts within and without the district." The bureau of municipal research and service of the University of Oregon has advised me that some cities have solved the problem by preparing special city poll books, either through a separate city registration or from information obtained from the county election records. The county election boards use these books to determine eligible city voters. As an alternative method the regular county poll books could be used and the election officers could question the voters to determine if they live in the city. In a city of less than 2,000 this is not too difficult a task since in most instances the election board officers know, without asking, whether the voter lives in the city. In other cases the election officers need merely put to the voter the question: "Do you live in the city?" If the voter answers in the affirmative, the election officer should check the address listed for the voter in the county poll book and determine if that address is located in the city. Those voters who are determined to be eligible to vote on the question of establishing a new city tax base should be handed a special city ballot at the same time they are handed their county and state ballots. The special city ballot should be deposited in a separate ballot box and should be counted by a separate city counting board (or by the county election board after all state ballots are counted).