Oregon Advisory Opinions March 19, 1957: OAG 57-22 (March 19, 1957)

Oregon Attorney General Opinions

1957.

OAG 57-22.

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You have requested my opinion concerning the following question: Would a statute be constitutional which provided that the question of establishing a tax base shall be submitted only at a regular state-wide general or state-wide primary election? This question arises because of the provisions of Article XI, § 11 (2), Oregon Constitution, the pertinent part of which provides:

"The question of establishing a tax base shall be submitted at a regular general or primary election. * * *"

Since the Constitution sets a date at which a tax base may be established, your question then turns on who has power to construe the language, "a regular general or primary election". The Supreme Court of Oregon said in the recent case of State of Oregon v. Kuhnhausen, 201 Or. 478, 517:

"So long as the doctrine of separation of powers remains basic in our system, the ultimate power and duty of the courts to construe the constitution must rest with the courts alone. That power should not be lightly whittled away by any rule which recognizes the power of the legislature to authoritatively construe the constitution. * * *"

The general rule, stated in 16 C.J.S. 504, is:

"It is beyond the power of the legislature to place a binding construction on a constitutional provision, as such function belongs to the judiciary * * * and an interpretation by the court of a constitutional provision is binding on the legislature."

Although the judiciary of Oregon has not yet determined the meaning of the language used in the constitutional amendment cited above, it is apparent that the legislature has no power to make a binding construction of that language. Of course, if the judiciary were to hold that "regular general or primary election" meant only a general state-wide election, such a statute as you have suggested would be unnecessary. On the other hand, if the judiciary held that the language was general and not specific in that it referred to elections within specific taxing units such statute would be unconstitutional. Moreover, this office has held in a prior opinion that the words "at a regular general or primary election" apply to the regular "general" elections provided by law in the various taxing districts and are not restricted to the regular biennial state-wide elections. Opinions of the Attorney General, 1952-1954, p. 220. Therefore, it is my opinion that a serious constitutional question would arise if such a law was enacted by the Legislative Assembly.

However, there is another solution to your problem. In the first place, there is no problem with regard to incorporated cities and towns since their primary and general elections are fixed by the Constitution on the same date as the state-wide and general biennial elections by Article II, § 14a, Oregon Constitution. And secondly, since all other taxing units, such as counties, school districts and other policital subdivisions to whom the power to tax has been granted, are agencies of the state, they are wholly subject to the control of the Legislative Assembly. State ex rel. v. Malheur County Court, 185 Or. 392; School District No. 1 v. Multnomah County, 164 Or. 336. There appears to be no question that the legislature could fix the date.

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of the "regular" elections of such taxing units, and by fixing such date could make it coincide with either the statewide general or primary election