Oregon Advisory Opinions April 13, 1961: OAG 61-54 (April 13, 1961)

Oregon Attorney General Opinions

1961.

OAG 61-54.

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186

You have requested our opinion as to whether the county clerk may change the boundaries of a precinct prior to a special election to be held this month.

You indicate that while the county clerk under ORS 246.410 has already divided the precincts subsequent to the last primary election and prior to the last regular general biennial election, flood conditions have covered the only road directly furnishing access from one part of the county to the polling place, requiring electors in that portion of the county to travel from 50 to 100 miles one way to reach the polling place.

ORS 246.410 governing the division of precincts provides as follows:

"(1) Not later than January preceding the primary election the county clerk shall divide the precincts if more than 500 registered electors reside therein. No precinct shall contain more than 500 registered electors. A precinct may contain more than 500 registered electors if the precinct is located in a single multiple dwelling. The county clerk shall fix the boundaries of the precincts and designate the precincts by numbers or names. No precinct in any city with a population of 2,000 or more, according to the latest federal decennial or state census, shall include territory outside the corporate limits of the city.

"(2) Subject to the limitations set forth in subsection (1) of this section, at any time after the primary election and before the next succeeding regular biennial general election :

"(a) The county clerk shall make such changes in the boundaries of election precincts as are necessary to reflect changes occurring during such period in the corporate limits of any city with a population of 2,000 or more after any such change in corporate limits.

"(b) The county clerk shall make such other changes in the boundaries of election precincts as are necessary or convenient for voting purposes." (Emphasis supplied)

It is clear that ORS 246.410 authorizes the fixing of boundaries for precincts: (1) "Not later than January preceding the primary election" in the instance of an increase in the population of electors; and (2) "at any time after the primary election and before the next succeeding regular biennial general election" where there has been a change in the corporate limits of a city or where changes are necessary or convenient for voting purposes. A public officer has only those powers granted to him by statute. State v. Des Chutes Land Company, (1913) 64 Or. 167, 129 P. 764. Because the statute limits the exercise of the power to change the boundaries of precincts to the times specified therein, the county clerk has no further authority to divide precincts in the county at the present time.

The reORGAnization of election districts must be carried out in conformity with the limitations and powers conferred. 29 C.J.S., Elections, § 54, p. 70. In making a change of boundaries in election precincts a county board must act only at the time and in the manner authorized by statute. County Board of Union County v. Short, (1898) 77 Ill. App. 448. In Ivie v. City of Ocean Lake, (1956) 208 Or. 417, 421, 302 P. (2d) 221, in response to a contention that election officials could modify the oath prescribed by ORS 250.390 (repealed 1957) since the statute was only directory, the court pointed out that the statute provided a procedure to be followed in a voter's taking of an oath upon being challenged and "the election board * * * is wholly without authority to add to or subtract from the oath provided by the statute." We think that likewise the county clerk is similarly bound by procedure for changing the boundaries contained in ORS 246.410.

Accordingly, it is our opinion that the county clerk has no power to change the boundaries of a precinct except in accordance with ORS 246.410 which makes provision for changes "as are necessary or convenient for voting purposes" only during the interval of time existing between a primary election and the next succeeding regular general election.