Oregon Advisory Opinions March 24, 1955: OAG 55-27 (March 24, 1955)
Collection: Oregon Attorney General Opinions
Docket: OAG 55-27
Date: March 24, 1955
Advisory Opinion Text
OAG 55-27.
State Representative
This is in response to your letter of March 22, 1955, in which you ask:
"Can the Legislature specify that a special election be called if and when a tax measure passed by this Legislature should be referended."
You would also like to know "if this special election could be tied to one particular tax bill, or to several."
Section 1, Article IV, Oregon Constitution, provides:
"* * * All elections or measures referred to the people of the state shall be had at the biennial regular general elections, except when the legislative assembly shall order a special election. Any measure referred to the people shall take effect and become the law when it is approved by a majority of the votes cast thereon, and not otherwise. * * *" (Emphasis supplied)
The power to call a special election on referred measures thus being clear, it remains to be determined whether or not the calling of a special election may be made contingent upon the referral of one or more measures.
The case of Libby v. Olcott, (1913) 66 Or. 124, is decisive of this question. In 1913 the Legislative Assembly passed a law calling a special election on a specific date at which time the people were to vote on all measures upon which the referendum had been invoked.
The plaintiff sought to prevent the special election and alleged that the law calling the election was unconstitutional since it did not state what measures the vote was to be taken upon and because no referendum petitions were pending at the passage of the Act.
The court observed:
"* * * that the legislature itself, acting directly, could have referred to the people any or all the laws it enacted, and it is not perceived why it could not, with equal propriety, annex a lawful condition to a referendum of the same bills ordered by petition. * * * It is also competent for the legislature to anticipate a condition likely to arise in the future, and consequently to provide legal rules applicable to such a contingency. This constantly happens in the ordinary course of legislation. Unless, therefore, it is forbidden by the Constitution, the legislative assembly, foreseeing possible referendums, might with propriety provide a rule of action in advance, controlling the procedure in such a situation."
The plaintiff therein also challenged the power of the legislature to make the
taking effect of the measures contingent upon the referendum as contrary to § 21, Article I, Oregon Constitution, which provides in part:
"No ex post facto law, or law impairing the obligations of contracts, shall ever be passed, nor shall any law be passed, the taking effect of which shall be made to depend upon any authority, except as provided in this Constitution; * * *" (Emphasis supplied)
The court ruled:
"* * * Neither this law, nor its taking effect, is made to depend in this instance upon anything except constitutional authority. The election itself mentioned may depend upon a contingency, but the election is not the law. The statute authorizing it went into effect like any other enactment. It is prospective in its operation and, as in many other cases, as the situation existed at the date of its enactment, there was no immediate use for it, yet it was a law of the state then as much as ever. It is the enactment and not the mere use of the law which gives it sanction. * * *" Libby v. Olcott, supra, 132.
It is accordingly my opinion that the legislature may pass a law calling a special election on one or more measures and make the holding of the same contingent upon the referendum having been invoked against said measure or measures.