Oregon Advisory Opinions January 09, 1963: OAG 63-4 (January 9, 1963)

Oregon Attorney General Opinions

1963.

OAG 63-4.

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117

You request an opinion as to whether, in the absence of an election, land acquired by Douglas County through tax foreclosure and set aside as a public park may be sold by the county court under ORS 275.330 to the United States Coast Guard for the purpose of constructing a coast guard station. You state that the statute appears to authorize a donation but not a sale of the land.

ORS 275.330 provides in part as follows:

"(1) Upon the entry of an order by the county court setting aside the real property for county forest, public park or recreational area, the lands shall be set apart for such use. Thereafter such lands may not be alienated by the county court for any purpose unless authorized by a majority of the voters of the county in a regular or special election, except that:

"(a) * * *

"(b) The county court of any county may convey the lands to the state, or an incorporated city or town or the United States Government for public use; provided, that such conveyance may be made without the payment of compensation, and when so made the county shall be relieved from any obligation to account for the payment of any taxes, liens or assessments that may have been levied against the lands by any taxing agency, district or municipality authorized to levy taxes against any of the lands.

"(2) Before making an order for conveyance of the property without approval at an election * * * the county court shall hold a hearing in the county courtroom at which objections to the proposed * * * conveyance may be heard. Notice of the hearing shall be given by publication weekly for two consecutive weeks in a newspaper circulated generally within the county, such notice to describe particularly the property affected." (Emphasis supplied)

ORS 275.330 deals with the establishment of county parks and provides that such parks can be alienated by the county court only after a favorable vote of the people with those exceptions defined in the statute.

The exception contained in ORS 275.330 (1)(b) states that the county court "may convey the lands to the * * * United States Government for public use; provided that such conveyance may be made without the payment of compensation." This language is permissive in character and should not be construed as requiring the county court to convey property without compensation unless it is clear that the Legislative Assembly intended to impose a positive and absolute duty requiring that the conveyance be made without compensation. See Lyons v. Gram, (1927) 122 Or. 684, 260 P. 220.

The exception also requires that the conveyance be for "public use." While this term defies absolute definition, we believe that the operation of a coast guard station constitutes a public use within the meaning of ORS 275.330.

In view of the plain permissive character of the language of ORS 275.330 (1)(b), construing the language of the subsection as requiring a conveyance to the United States by way of donation rather than by way of a sale is inconsistent with the language of the statute.

Accordingly, it is our opinion that, without securing voter approval, land acquired by Douglas County through tax foreclosure and set aside as a public park may be sold by the county court under the provisions of ORS 275.330 to the United States Coast Guard for the purpose of constructing a coast guard station.