Oregon Advisory Opinions July 09, 1958: OAG 58-98 (July 9, 1958)

Oregon Attorney General Opinions

1958.

OAG 58-98.

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You have requested an opinion as to the following: ORS 358.170 provides that a county court may, and shall upon the filing with the county clerk of a petition signed by no less than 8 percent of the legal voters, submit to the legal voters of the county at the next general election the question whether or not a county historical fund shall be created, etc. This chapter does not provide for the time that such an order shall be certified to the county clerk in order that the matter may be placed upon the ballot as provided for by the statute.

You wish to know if the provisions of ORS chapter 310 pertaining to the manner of certifying an election necessarily apply to the provisions for the election concerning the special levy for the historical fund.

ORS 358.170 provides that the question concerning the creation of a county historical fund is to be submitted at the next general election. ORS 358.180 provides that in addition to the taxes now permitted by law to be levied, a tax upon the taxable property in the county not exceeding 1 mill or such part thereof as is authorized by the legal voters of the county may be levied for the purpose of creating a county historical fund and that the levy shall be a continuing levy. It is clear that this is a provision for levying taxes. Therefore, the general provision applying to voting on tax levies should apply, except that such application may be limited or controlled by any specific provisions applying to this particular tax as provided for in ORS chapter 358.

ORS 358.170 (2) provides as follows:

"(2) The question to be submitted and the

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"'Shall _____ County, Oregon, establish a county historical fund for such county, to be used for the purposes provided in ORS 358.200 and annually levy a tax of not to exceed _____ mill therefor-which shall be a special tax in addition to other taxes levied by said county and shall not be within the limitation as provided by section 11, Article XI of the Oregon Constitution.

"'For Historical Fund and tax ( ) Yes

"'Against Historical Fund and tax ( ) No.'"

ORS 358.190 provides as follows:

"The county historical fund is not subject to the provisions of the Local Budget Law and shall be a continuing fund; the amounts levied therefor shall not be deemed to be within the limitation provided by section 11, Article XI of the Oregon Constitution. " (Emphasis supplied)

The legislature intended that the levy for the historical fund should not be made a part of the tax base as provided for in the Constitution and that the only way the levy could be made would be when specifically authorized by a majority of the legal voters as a special levy. Article XI, § 11, of the Constitution, provides that no taxing unit may levy a tax outside of its tax base unless specifically authorized by a majority of the legal voters voting upon the question.

ORS 310.310 provides as follows:

"Elections for voting upon the question of increasing the tax levy in the counties, municipalities and districts not possessing a separate legislative department, shall be called and held in the manner respectively provided by ORS 310.330 to 310.390."

The provisions hereinafter quoted must be construed together with ORS 358.170, which provides that the question of the creation of a county historical fund is to be submitted at the next general election.

ORS 310.330 provides as follows:

"(1) Whenever it is necessary in the estimation of the county court or board of county commissioners of any county to increase the amount of the tax levy over the amount limited by the Constitution except on vote of the people, the county court or board of county commissioners shall make and enter an order for a special election on the question and shall certify to the county clerk that the increase, in its judgment, is necessary, stating the reasons therefor and the amount of the increase in not to exceed 100 words. The determination and certificate shall be made not less than 35 days before the first Tuesday after the first Monday in November or the third Friday in May in any year, or the day specified for the special election in the order.

"(2) Thereupon and not less than 30 days before the date of the election, the county clerk shall issue and mail to the respective judges and clerks of election in the precincts in his county, election notices prepared in the same form and manner as for a regular general election, stating thereon that the question of increase of the county tax levy will be voted upon at such election and shall include therein a copy of the certificate of the county court or board of county commissioners."

Construing the foregoing statutes together, it seems clear that if a tax is to be levied for a county historical fund, then by statute that tax is in the category "over the amount limited by the Constitution except on vote of the people" and, therefore, must be subject to the provisions of ORS 310.330 as stated above, and subject to the provisions for certification to the county clerk, etc. Also your attention is called to the optional manner of giving notice as provided in ORS 310.340, which is as follows:

"In any year when a regular election is to be held throughout the state, or a special election is to be held throughout the state, or any county for any other purpose, on the first Tuesday after the first Monday in November, or on the third Friday in May, the notices of election provided to be given by the county clerk of each county by subsection (2) of ORS 310.330 may be included in the general notice of such election."

In conclusion, certifying the questions of creating a county historical fund to the county clerk so that it may be voted upon necessarily involves a tax levy which is outside the constitutional limitations; therefore, the procedures set forth in ORS 310.330 and 310.340 are applicable.