Oregon Advisory Opinions January 19, 1968: OAG 68-9 (January 19, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-9
Date: Jan. 19, 1968
Advisory Opinion Text
OAG 68-9.
The voters of a county not having a "home rule" charter adopted pursuant to Article VI, § 10, have no authority to enact an initiative measure unless the county governing body or the voters of the county have been expressly granted power to legislate on the matter involved.
District Attorney, Deschutes County
You ask:
" 'Can [the county court of] Deschutes County adopt new zoning and subdivision regulations without a vote of the people?' "
You advise that in Deschutes County, which is not a county having a home rule charter such as may be adopted under Article VI, § 10, Oregon Constitution,
"* * * an initiative measure was passed in November, 1966, which was worded as follows:
" 'Be it enacted by the People of Deschutes County, Oregon, that all ordinances, rules and regulations passed heretofore by the County Court of Deschutes County, Oregon, under authority of ORS Chapters 92 and 215 be repealed excepting that all present established zones shall continue in effect according to existing provisions. All zoning ordinances or amendments to zoning ordinances will originate by petition from, and vote thereon by, the persons affected by such proposed ordinance or amendment as provided by law and not otherwise. No person shall be required to comply with any ordinance, rule or regulation as a condition to sale or subdivision of land or as a condition to the filing of a plat except as shall be required by the general laws of the State of Oregon by its Legislative Assembly.' " (Emphasis supplied)
Presumably this "initiative measure" was voted on pursuant to Article IV, § 1a, Oregon Constitution, which provides in part:
"* * * The initiative and referendum powers reserved to the people by this Constitution, are hereby further reserved to the legal voters of every municipality and district, as to all local, special and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, except that cities and towns may provide for the manner of exercising the initiative and referendum powers as to their municipal legislation. * * *"
A county has been held to be a "district" within the meaning of Article IV, § 1a, supra: Schubel v. Olcott, (1912) 60 Or. 503, 120 P. 375.
The court has recognized the power of the people to initiate county measures in the case of locating a county seat for a new county (Barber v. Johnson, (1917) 86 Or. 390, 167 P. 800, 1183), moving a county seat (Briggs v. Stephens, (1926) 119 Or. 138, 248 P. 169; Kosydar v. Collins, (1954) 201 Or. 271, 270 P. (2d) 132), and to enact a county measure relating to certain tax exemptions (Schubel v. Olcott, supra). Voting to locate a seat for a new county was authorized by chapter 10, § 6, Oregon Laws 1913 (now ORS 202.120). Regarding the moving of a county seat, the people of a county had been granted authority by Oregon Laws 1903, p. 165, to determine such a matter at an election. This statute was repealed by chapter 288, Oregon Laws 1927, prior to Kosydar v. Collins, supra, and the court
in the latter case did not attribute significance to such repeal, although it must be noted that the issue does not seem to have been raised. (The court merely referred to the case precedent for allowing such an election to be held under Article IV, § 1a, without noting that a specific grant by statute for such voter determination had earlier existed. This decision seemingly represents a departure---temporary at most as we shall later point out---from the court's otherwise consistent interpretation of Article IV, § 1a, regarding the power of the voters of a county to initiate a law, but we again point out that the issue was evidently not raised before the court.) The tax measure in the Schubel case, supra, was authorized under Article IX, § 1a, Oregon Constitution, which, at that time, included the following provision:
"* * * the people of the several counties are hereby empowered and authorized to regulate taxation and exemptions within their several counties, subject to any general law which may be hereafter enacted."
But in the case of the "initiative measure" to which you refer, we find no power granted to the people of a county not having a home rule charter to enact a law requiring that zoning ordinances (or "regulations") be originated only by petition and adopted only by popular vote, or that subdivision ordinances (or "regulations") applicable to a county may only be enacted by the legislature. On the contrary, ORS 215.110 clearly provides that such ordinances may be enacted by action of the county governing body, either on its own initiative or on the recommendation of the county planning commission:
"(1) The [county planning] commission may recommend to the governing body ordinances intended to carry out part or all of the comprehensive plan adopted by the commission. The ordinances may provide, among other things, for:
"(a) Zoning,
"(2) The [county planning] commission may also recommend to the county governing body ordinances renaming public thoroughfares, numbering property, and controlling subdivision and other partitioning of land and the location, construction, maintenance, repair and alteration of buildings and other structures.
"(3) The governing body may enact, amend or repeal ordinances recommended by authority of this section, together with whatever amendments it believes the public interest requires. The governing body may also enact, amend or repeal with reference to any subject mentioned in subsection (1) of this section, an ordinance on which the governing body initiates action, provided that it first requests from the [county planning] commission a report and recommendation regarding the ordinance and allows a reasonable time for submission of the report and recommendation. The governing body may also enact, amend or repeal with reference to any subject mentioned in subsection (2) of this section, an ordinance on which the governing body initiates action, regardless of whether the county has a planning commission; provided that, in the event the county has a planning commission, the governing body first requests from the commission a report and recommendation regarding the ordinance and allows a reasonable time for submission of the report and recommendation."
(Subsection 4 of the statute provides that ordinances provided for in § 3 thereof may be referred to the voters of the county by the governing body. ORS 215.130 (1) further provides that provisions of the law for invoking the initiative and referendum are applicable to such ordinances. However, the provision leading to your inquiry in the "initiative measure" to which you refer, which solely refers to the procedure for initiating and adopting such ordinances, clearly is not within the scope of either statute.)
The Oregon court has held that a measure enacted by the people under Article IV, § 1a, supra, must be done so pursuant to some grant of legislative power, either by virtue of a charter or by statute. In State ex rel. v. Port of Astoria, (1916) 79 Or. 1, 23, 154 P. 399, 406, the court said:
"* * * municipal legislation, within the meaning of Section 1a of Article IV, when applied to municipalities, other than cities and towns, refers to legislation which is permitted and made necessary for carrying into effect a lawful power previously granted. * * * If it does not rise to the dignity of a city or town, a municipality cannot take unto itself and exercise any power whatever, unless the right is first granted by a law passed by the people of the whole state or by a general statute enacted by the legislature. * * *"
(The distinction drawn by the court between "cities and towns," on the one hand, and other municipalities or districts results from the provision in Article XI, § 2, granting to the voters of "every city and town" power to adopt a charter.)
As said in Rose v. Port of Portland, (1917) 82 Or. 541, 558, 162 P. 498, 503:
"* * * The Constitution enables the legal voters of cities and towns to enact or amend their charter, but does not permit the legal voters of any other municipality or district to enact or amend their charter or act of incorporation without outside legislative aid. " (Emphasis supplied)
With respect to counties the Oregon
court said, accordingly, in Barber v. Johnson, supra (86 Or. at 395), that
"* * * he who would uphold the action of the people of a county under the initiative must point to some grant of power to act on the subject in question; * * * (Emphasis supplied)
In Carriker v. Lake County, (1918) 89 Or. 240, 246, 171 P. 407, 173 P. 573, 574, the court was required to determine whether an initiative measure providing for a tax levy for bounties for jack rabbits, passed by the people of the county at an election, was valid. Holding that it was not, the court, referring to Article IV, § 1a, said:
"* * * A county cannot enact a law unless the power to enact that law is referable to a grant of power made by the people of the whole state or by their representatives, the legislature. Nor does it necessarily follow that a county can initiate and enact a local, special and municipal law without a charter merely because it can exercise the referendum without a charter granting it the power of exercising the referendum. * * *" (Emphasis supplied)
A somewhat similar problem was before the court in Fischer v. Miller, (1961) 228 Or. 54, 363 P. (2d) 1109, where the people of Linn County had adopted at an election an initiative measure controlling the hunting of migratory water fowl. However, the court, noting that the measure was attacked on various constitutional grounds, limited its decision to a holding that the measure was void on the basis that the state had pre-empted the area of regulation governed by the measure.
As we have noted, the court seemingly departed from the reasoning of Rose v. Port of Portland, Barber v. Johnson and Carriker v. Lake County, supra, in the case of Kosydar v. Collins, supra, where an election to remove a county seat was held valid although the statutory authority for a popular vote on such a matter had been repealed. It could have been arguably inferred from the latter case that Article IV, § 1a, was held, therefore, to be a substantive grant to the voters of each and every "municipality and district" in the state---broad terms indeed---of general power to enact all laws, ordinances or regulations which could be considered to be "local, special and municipal legislation, of every character" unlimited by reference to any charter or specific grant of legislative authority.
Had the Oregon court intended such a far-reaching result, involving the overruling of the prior decisions noted, it would surely have so indicated. At any rate subsequently the court clearly reaffirmed its adherence to the doctrine of Rose v. Port of Portland, supra, in Hansell v. Douglass, (1963) 234 Or. 315, 317-318, 380 P. (2d) 977, 978. Here it was held that the power to enact an initiative measure under Article IV, § 1a, was not available to the voters of a school district absent a grant of legislative power. The court, noting that Article IV, § 1a, was adopted at the same time as an amendment to Article XI, § 2, which grants to the voters of "every city and town" the power to "enact and amend their municipal charter," said:
"The opinion in the Rose case decided that the two amendments must be construed together and then exhaustively analyzed the two amendments with unusual clarity and reason. The conclusion was reached that the two amendments extended the initiative power only to those municipalities and districts that had the power to legislate; basically cities and towns. The opinion said * * * 'no other corporate body can, without an enabling act, legislate power unto itself to legislate.' 82 Or at 573. The case held that the Port of Portland did not have the initiative power. A year later, in Carriker v. Lake County, 1918, 89 Or 240, 171 P 407, 173 P 573, Justice HARRIS, in even more emphatic language, applied the same rule to a county:
"* * * ' A county cannot enact a law unless the power to enact that law is referable to a grant of power made by the people of the whole state or by their representatives, the legislature. * * * As pointed out in Rose v. Port of Portland, 82 Or 541, 553-558, 570 (162 Pac. 498), the words found in the two sections of the Constitution, when read together, define the extent of the power of the referendum and define and limit the power of the initiative.' 89 Or 245, 246, opinion on petition for rehearing.
"The same rule would apply equally, if not more so, to a school district. 'Although the municipality in Rose v. Port of Portland was a port and the municipality in the instant case is a county, nevertheless the legal principle involved is identical in both cases.' Carriker v. Lake County, supra, 244." (Emphasis supplied)
It is therefore clear that the powers of initiative and referendum are available to the voters of a county only with reference to a pre-existing authority to legislate, and no general authority to do so is granted in a self-executing fashion by Article IV, § 1a.
It has been contended that general authority for the voters of a county to enact local legislation on matters where such power has not been specifically granted by law is contained in ORS 254.310 (originally enacted in chapter 251, General Laws of Oregon 1919, and hereinafter referred to by its 1919 designation), which provides:
"The people of every county are authorized to enact, amend or repeal all local laws for their county by the initiative and referendum process. The procedure to be followed is provided by ORS 254.030 to
254.170, 254.320, 254.330 and 255.410 to 255.450, making effective the initiative and referendum powers reserved to the people by sections 1 and 1a, Article IV, Oregon Constitution * * *."
In the article "Home Rule for Oregon Counties" by James D. Barnett, Professor of Political Science at the University of Oregon, December 1921, 1 Or. L. Rev. 47, 50, it is stated that this statute was enacted as a result of Carriker v. Lake County, supra, for the purpose of granting a general legislative power to the voters of Oregon's counties. The article states that the purpose of the statute was
"* * * to correct the effect of this decision. This was just the 'charter' required---which, as the court had indicated, might be granted to the counties either 'by the people of the whole state or by their representatives, the legislature.' " (Quoting from Carriker v. Lake County, supra.)
This view was reiterated by Professor Barnett in "Special Legislation for Quasi-Municipal Corporations in Oregon," April 1927, 6 Or. L. Rev. 272, 274-275, where he said that this statute
"* * * properly interpreted, would seem to be a real grant of 'home-rule' to counties, corresponding to the 'home-rule' granted by the constitution to cities and towns, applicable to all county affairs, and thus removing almost all need of special legislation in reference to counties."
We are unable to agree with this view. Although the attempted effect of this statute (chapter 251, General Laws of Oregon 1919) may be subject to argument, it must be concluded that it is entirely procedural in effect, rather than constituting a substantive grant of legislative power to the voters of a county.
The title of chapter 251, General Laws of Oregon 1919, read as follows:
"Granting to the people of counties the initiative and referendum powers reserved to the people by sections 1 and 1-a of article IV of the constitution, and providing for use and application of such powers."
Certainly the term "granting" used in the above title would ordinarily imply that something is being given thereby "to the people of counties" which they did not already have. However, the title immediately goes on to specify what is being "granted," namely,
"* * * the initiative and referendum powers reserved to the people by sections 1 and 1-a of article IV of the constitution * * *."
An application of the simplest logic shows that nothing is truly being "granted" where the "grant" is specified as being that of "powers reserved to the people" already by the Constitution itself. Similarly, in the body of the statute, after listing the statutes providing the "procedure to be followed," such statutes are referred to as "making effective the initiative and referendum powers reserved to the people by sections 1 and 1a, Article IV, Oregon Constitution."
The Oregon court, as we have noted (Carriker v. Lake County, supra, etc), has explicitly and repeatedly said that with respect to municipalities or districts other than cities or towns, Article IV, § 1a, confers no authority for the enactment of local legislation beyond that referable to a pre-existing grant of legislative power. The legislature, of course, cannot expand the meaning of the Constitution.
(We parenthetically note that an examination of the House and Senate Journals, Oregon Legislature 1919, shows that Senate Bill 165, which became chapter 251, passed both chambers of that body without amendment and without a dissenting vote. It would seem natural that if the legislature had understood that the purpose of the bill was to grant statutory "home-rule" to all of Oregon's counties, "corresponding to the 'home-rule' granted by the Constitution to cities and towns," the subject would have aroused more controversy.)
It seems proper to conclude that chapter 251, General Laws of Oregon 1919, if intended to "correct the effect" of the ruling in Carriker v. Lake County, supra, reflected a misreading of that decision. It may have been felt that the court, despite its earlier rulings in Schubel v. Olcott and Barber v. Johnson, supra, had in the Carriker case held that the legislature had not thus far enacted procedural legislation necessary to allow the voters of a county to exercise the narrow power of initiative and referendum encompassed within Article IV, § 1a, with regard to a pre-existing grant of legislative power.
Chapter 251, General Laws of Oregon 1919, must be considered one procedural in nature only, and as having been enacted solely to specify the means by which the voters of a county could exercise the limited initiative and referendum power (that is, limited to exercise with respect to otherwise existing grants of legislative power) provided for in Article IV, § 1a.
(It might be argued that the 1919 law was given substantive effect by Kosydar v. Collins, supra, where an election to remove a county seat was held valid although specific statutory authority for a popular vote on such an issue had
been repealed. But even in that case, which, as we have noted, appears to present a temporary departure from the court's otherwise consistent interpretation of Article IV, § 1a, the Oregon Supreme Court said of the statute:
"It is evident that no powers were granted to the people by this statute [ORS 254.310]---the constitution had already reserved such powers to them---but the act did provide for the manner of exercising them. * * *" (Kosydar v. Collins, supra, 201 Or. at 279))
Accordingly, it must be concluded, as we said in Opinions of the Attorney General, 1962-1964, pp. 240, 242:
"ORS 254.310 does no more than provide the procedure for exercising Article IV, § la powers and does not itself confer authority for the voters of a county to enact local legislation * * *."
Generally concerning counties it is said in Fales v. Multnomah Co. et al., (1926) 119 Or. 127, 133, 248 P. 151:
"Counties are created for purposes of government and authorized to exercise to a limited extent a portion of the power of the state government. They have always been held to act strictly within the powers granted by the legislative acts establishing and controlling them. * * *"
If the voters of a county wish to enlarge their authority to legislate, beyond the matters where such power is generally granted by existing law, the manner of doing so is specifically provided in Article VI, § 10, Oregon Constitution (providing for county "home rule" charters), and enabling legislation enacted pursuant thereto. As stated in the Voters' Pamphlet for the 1958 general election, at which Article VI, § 10, was adopted as a constitutional amendment:
"* * * Under this amendment [now Article VI, § 10], a county could by charter be authorized to exercise legislative power over matters of county concern, whereas currently it can only adopt ordinances on a specific subject if the state law expressly permits it to do so."
It is our opinion that under the doctrine of Rose v. Port of Portland, Barber v. Johnson and Carriker v. Lake County, supra, as reaffirmed in Hansell v. Douglass, supra, the people of Deschutes County had no authority to enact an initiative measure which would prohibit the county court from adopting zoning or subdivision ordinances, inasmuch as authority has not been granted by law for the enactment of such an initiative measure. Your question is therefore answered in the affirmative.