Oregon Advisory Opinions May 10, 1960: OAG 60-56 (May 10, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-56
Date: May 10, 1960
Advisory Opinion Text
OAG 60-56.
District Attorney, Benton Countyer
Your questions have been rephrased as follows:
When may the question of the adoption of a county home rule charter be presented to the voters of a county? At a general election? At a special election called for the express purpose? At a special election called for another purpose?
Reference was made in your letter to ORS 203.720 (chapter 527, Oregon Laws 1959) which authorizes the adoption of a county charter "at any legally called election." Your question is apparently occasioned by the alternatives suggested by the quoted words.
It is our opinion that the question of adopting a county home rule charter can be presented only at a general election.
Attention is directed to ORS 203.760 and 203.780 which, when taken together, provide the election machinery for the two methods of adopting a county charter.
ORS 203.780, in general, provides that a county charter may be adopted by the initiative method. This section further provides that the mechanics of the election upon an initiated charter shall be governed by ORS 254.030 to 254.170, with the appropriate substitution of county officers for their state counterparts.
ORS 203.760, when construed with other sections of ORS chapter 203, provides for the "referral method" of adopting a county charter. This statute like
wise provides that, with appropriate substitutions of officers, ORS 254.030 to 254.170 shall govern the mechanics of voting upon a charter "referred" to the electorate by a charter committee.
Although ORS 254.030 to 254.170 might seem to lack direction both as to the authority empowered to call an election and as to the time when such election may be set, the Oregon Supreme Court has ruled otherwise. Attention is directed to the decision of Kosydar v. Collins, (1954) 201 Or. 272, 270 P. (2d) 132, where the Oregon court held that ORS 254.090 automatically called a county initiative election to be held at the time of the "ensuing general election." The court in the cited decision thereby held that ORS 254.090 in one stroke provided both the authority for holding an election and set the time at which such election was to be held. See also Opinions of the Attorney General, 1938-1940, p. 341.
The Oregon court has consistently adhered to the general rule that the people have no inherent authority to hold an election, and that, in order for an election to be valid, express authority for calling a particular election must be found either in the code or in the Constitution. See Equi v. Olcott, (1913) 66 Or. 213, 133 P. 775; Henderson v. City of Salem, (1931) 137 Or. 541, 1 P. (2d) 128, 4 P. (2d) 321; State ex rel. Bylander v. Hoss, (1933) 143 Or. 383, 22 P. (2d) 883; Seufert v. Stadelman, (1946) 178 Or. 646, 167 P. (2d) 936.
A search of the code having failed to disclose statutory authority other than ORS 254.090 as interpreted by the Kosydar case, it is our opinion that the above cited principle of law would prevent holding an election on a county charter at any time other than the time of the general election.
In reaching the conclusion announced herein, we have considered and rejected the suggestion that ORS 203.720 in and of itself provides authority for submitting a county charter measure "at any legally called election." It is our opinion that ORS 203.720 in using the quoted words was merely referring to elections which were to be called pursuant to authority to be found elsewhere. Our opinion is based upon three reasons.
The first and strongest reason for interpreting ORS 203.720 in the above manner arises from the fact that the legislature has seen fit to provide very complete details in ORS 203.760 and 203.780 for conducting the initial county charter election. It is highly unlikely that the legislature would complicate this procedure by providing additional election authority which would conflict with provisions contained in the same Act.
The second reason for so interpreting ORS 203.720 arises from the fact that this section is devoid of details as to the manner of holding a charter election. The lack of such election details as the identity of the calling authority, election officials, etc., tends to show that the legislature was referring to elections legally called under other authority.
The third reason for interpreting ORS 203.720 in the above manner arises from the fact that the emphasis of this statute is primarily on the requirement that a county provide by charter for its own election methods, and that such charter provisions be favored over the present general election statutes. This emphasis on charter-authorized elections tends to show that the legislature contemplated that the authority to hold the initial charter election be found elsewhere.
We have also taken into account the fact that Article VI, § 10, Oregon Constitution, in mandatory language, requires the legislature to provide a "method whereby the legal voters of any county, by majority vote of such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter." However, we do not feel that this consideration changes our conclusion.
The word "any" as used in the quoted words is susceptible of two interpretations. The broader interpretation would impose upon the legislature the duty to provide election methods designed to enable a charter to be voted upon at the time of any and all elections, regardless of their purpose. The narrower interpretation would give the legislature the discretion to provide for a legal election to be held at such time as the legislature might choose. Since the broader interpretation would deprive the legislature of discretion by requiring a charter election to be conditioned upon the happenstance of elections called for other purposes, we feel that this interpretation is the less reasonable of the two.
This unreasonableness is especially striking when one considers the fact that Article VI, § 10, Oregon Constitution, is not self-executing. This tends to show that the framers intended to confer the maximum of discretion upon the legislature in choosing election methods. For this reason, and for the reason that we, as public officials, must ordinarily presume legislative Acts to be constitutional, it is our opinion that Article VI, § 10, has conferred upon the
legislature the discretion of choosing the time when charter elections may be held.
In conclusion, it is our opinion that the initial election on the adoption of a county charter can only be held at the time of the general election.