Oregon Advisory Opinions August 01, 1968: OAG 68-116 (August 1, 1968)
Collection: Oregon Attorney General Opinions
Docket: OAG 68-116
Date: Aug. 1, 1968
Advisory Opinion Text
OAG 68-116.
You have raised two questions concerning the interpretation of the proposed constitutional amendment imposing a one and one-half percent limitation on ad valoram property taxation. Subsection (1) of the proposed limitation states:
Your first question relates to the exclusion of certain levies under subsection (3) which reads as follows:"The total amount of taxes which may be levied against any real or personal property in any year shall be limited to one and one-half percent of the true cash value of such property."
Assuming that a school district has submitted its levy to the voters under subsection (3) and has obtained the required approval, you ask whether the amount excluded from the effect of subsection (1) is the total school levy or only that portion of the school levy which might exceed the one and one-"The limitation provided in subsection (1) of this section shall not apply to any tax levy when submitted by a taxing unit to the voters therein on the first Tuesday after the first Monday in November of any year and approved by a majority of the voters voting thereon which majority must also be not less than 20% of the registered voters entitled to vote thereon at said election."
half percent limitation as it might be computed taking into consideration all of the levies included in the limitation, such as those of the county and the city. Your hypothetical example helps illustrate this. You assume a code area embracing a county, city and school district. The one and one-half percent limitation is in effect. The city's levy would result in a rate of 0.3 percent, and the county's levy would result in a rate of 0.3 percent. This leaves a levy of 0.9 percent available to the school district within the limitation. However, the school district wishes to levy 1.8 percent on true cash value. With the school district's levy, the total levy in the code area would be 2.4 percent. If the 1.8 percent levy of the school district were submitted to the people and approved pursuant to subsection (3), is the entire 1.8 percent outside of the limitation, or is 0.9 percent within and 0.9 percent without the limitation?
You refer to subsection (3)(b) of present Article XI, § 11, Oregon Constitution, which states that the limitation does not apply to "That portion of any tax levy which is specifically voted outside the limitation imposed by subsection (1) * * * ."
A reading of the present six percent constitutional limitation shows that the language referring to the tax levy is an all-inclusive reference to the total amount of taxes levied by a particular taxing unit. The total amount of taxes levied by a taxing district in any one year may include a number of tax "levies." This is demonstrated, for example, by the language of ORS 310.020, 310.030 and 310.400,
and ORS 280.010 to 280.990. Without specifically setting forth all the provisions of these various statutes, it is sufficient to point out that the word "levy" may be used to refer to the total amount of money levied by a taxing district. For example, ORS 310.050 states as follows:
"All counties, cities, school districts and other corporations, which are vested with the power of levying taxes, shall:
"(1) Make their total levy in dollars and cents, and not otherwise.
Within the "total levy" contemplated under the above statute, a "levy" may be submitted to the vote of the people, which constitutes a part of the total levy certified to the assessor. ORS 310.395 is illustrative:"(2) Report the total levy and the anticipated maximum addition to the rate of levy, stated under ORS 310.395 as to any election that was necessary to authorize a part of the total levy, to the county assessor and county clerk at the time and in the manner provided in ORS 310.060."
"(1) Notwithstanding any other law and when not inconsistent with or otherwise provided for in the Oregon Constitution, whenever a proposed tax levy, whether a continuing fixed levy, continuing levy or levy for a single year, is submitted to a vote of the people by this state or any county, municipality, district or body to which the power to levy a tax has been delegated, the measure submitted shall state:
"(a) The total amount of money to be raised by the proposed levy, in dollars and cents; * * * "
With this distinction in mind, let us look at the proposed one and one-half percent limitation. The
limitation of subsection (1) obviously relates to all of the "total levies" levied by all the taxing districts in which a particular piece of property is located. The only exceptions are in subsections (2) and (3). Notice that subsection (2), like present Article XI, § 11, talks about a "portion of any tax levied." It reads as follows:
The all-inclusiveness of the words "any tax levied" appears to refer to either the total amount levied by a particular taxing district or the amount of any particular levy by the district within the total amount it levies. So long as any portion is designated for the payment of bonded indebtedness or interest thereon existing prior to November 5, 1968, it would come within the limitation of subsection (2)."(2) The limitation provided in subsection (1) of this section shall not apply to that portion of any tax levied which is for the payment of bonded indebtedness or the interest thereon, if the indebtedness existed prior to November 5, 1968."
In viewing subsection (3), which refers to "any tax levy" we must remember that the proposed constitutional amendment repeals Article XI, § 11, in its entirety. Except for cities, and home rule counties, taxing districts are creatures of the legislature. Such districts can only levy as authorized by the Legislative Assembly which creates them. The Legislative Assembly, as we have seen, has created various kinds of "levy." Referring to one specific example, ORS 280.060 gives certain taxing districts the right to levy taxes serially outside the present six per-
cent limitation, for the purposes of financing the cost of services, projects, the acquisition of property or equipment, and for other expenditures, all as specifically sat forth in ORS 280.050. Such statutory authority, specifically tied to the existing constitutional limitation, would be impliedly repealed by the repeal of Article XI, § 11. Ladd & Tilton Bank v. Frawley, (1920) 98 Or. 241, 193 P. 916. On the other hand, such provisions as ORS 310.360, relating to any constitutional limitation, would continue to give statutory authority to elections under the proposed amendment. It reads in part as follows:
"(1) Whenever it is necessary in the opinion of any district school board to increase the amount of the tax levy in the school district over the amount limited by the Oregon Constitution except on vote of the people, the district school board shall make a determination and certificate upon the question of increasing the tax levy and fixing the date of the election similar to the determination and certificate required by ORS 310.330."
An election to be valid must be held in pursuance of some authorizing provision of law, in force at the time. Andrews v. Neil, (1912) 61 Or. 471, 120 P. 383, 123 P. 32. To the extent that the proposed constitutional limitation is self-executing, and to the extent that election machinery and procedure have been or would be authorized under which any tax levy available to a taxing unit may be submitted to the voters on the first Tuesday after the first Monday in November of any year, such a tax levy, upon approval as required by the above quoted subsection (3), would stand
free and clear of the one and one-half percent limitation provided in subsection (1) of the proposed constitutional amendment. The specific language of subsection (3) stating that the limitation "shall not apply to any tax levy," as contrasted to the language in subsection (2) limiting the limitation to "that portion of any tax levied," is sufficiently clear to admit of no other conclusion than that the levy submitted, whatever amount it might be, would not be within the one and one-half percent limitation.
Returning to the example you have provided, if the school district were to submit a tax levy in the full amount of 1.8 percent, and that levy were approved as required by subsection (3), the full amount of the levy would be outside of the one and one-half percent limitation, leaving the full one and one-half percent available to the city and county. On the other hand, if the school district only submitted a tax levy of 0.9 percent (and levied 0.9 percent within the limitation so that the total within, with the city and county levies, would be only 1.5 percent) then the tax levy so submitted would be outside of the limitation.
Your second question is as follows:
"My second question requires a reply only if your answer to my first question was affirmative. I have noted that subsection (4) of the proposed amendment permits the Legislative Assembly to enact legislation to carry out the provisions of subsections (1) and (2) of the section. Could the Legislative Assembly enact legislation to impose limits on the levies of taxing units including cities and charter
counties which, having voted their levies out of the one and one-half percent limitation pursuant to subsection (3), otherwise would have no constitutional limitation?"
In a recent opinion of this office, No. 6308, dated May 19, 1967, we considered a similar question under Article XI, § 11, Oregon Constitution. The question was whether the legislature could limit the authorization contained in a city ordinance, given by the voters, to levy outside of the six percent limitation. More specifically, the question was whether the legislature could limit the number of years for which a parks levy could be made by a city outside of the six percent limitation. ORS 280.060, referred to above, limits serial levies for the purposes set forth in ORS 280.050 to a period of not exceeding 10 years. Our opinion reviewed the case of City of Woodburn v. State Tax Commission, (1966) 243 Or. 633, 413 P.(2d) 606, and the statement in that case that: "The purpose for which a city levy is to be spent or its amount, is, of course, a matter of predominantly local concern," citing City of Portland v. Welch, (1936) 154 Or. 286, 297-298, 59 P.(2d) 228. The Woodburn case and other Supreme Court decisions relied upon in that case clearly stand for the proposition that the Legislative Assembly cannot, by general statute, override local legislation where there is involved a matter of predominantly local rather than state-wide concern, and conversely, that such state legislation predominates only where it can be said that the subject matter is
a matter of state-wide concern. Our answer, therefore, is that the Legislative Assembly could not enact legislation to impose limits on the levies of cities and county charters so as to limit the amount which those taxing units could levy outside of the one and one-half percent limitation contained in the proposed constitutional amendment. The Legislative Assembly could limit the amounts of any taxing unit created by the legislature, including schools, noncharter counties and the like.