Oregon Advisory Opinions November 08, 1971: OAG 71-80 (November 8, 1971)
Collection: Oregon Attorney General Opinions
Docket: OAG 71-80
Date: Nov. 8, 1971
Advisory Opinion Text
OAG 71-80.
During the regular biennial legislative session of 1971 the legislature passed and the Governor approved Enrolled House Bill 1640 (Oregon Laws 1971 ch. 535), increasing the cigarette tax, and Enrolled House Bill 1979 (Oregon Laws 1971 ch. 772), authorizing counties to levy a $10 tax on the registration or renewal of registration of motor vehicles. However, referendum petitions bearing sufficient valid signatures were subsequently filed before the effective date of the measures to require them to be referred to the voters under Article IV, Section 1 of the Oregon Constitution.
These measures would ordinarily be voted on by the people
in the next regular general election, i.e., November 7, 1972, and if approved would become effective 30 days later, i.e., on December 7, 1972. Or. Const. art. IV, § 1(4)(c),(d). We are asked whether the legislature has power, in its impending special session, to advance the date of the referendum on the two measures to the primary election on May 23, 1972, or to an earlier special election called for that particular purpose, so that the measures, if approved, will be effective much earlier than December, 1972.
It is suggested that the legislature lacks power to advance the date of a referendum election from that specified in Article IV, Section 1(4)(c) of the Oregon Constitution. We conclude that the legislature has power specifically granted by the Constitution to advance the date of a referendum election, either to the preceding primary election, or to a special election held at some other time for that specific purpose. It is also suggested that to advance the date of a referendum and accordingly (in case of approval by the voters) to advance the effective date of legislation is somehow in derogation of the referendum right guaranteed by the Constitution. This is to confuse the purpose of the referendum, which is to give the people an opportunity to approve or reject a measure. Delaying the effective date of a measure is necessary to enable the people to exercise this right; it is no purpose of the Constitution to protect any right to delay, as such.
Article IV, Section 1(4) of the Oregon Constitution provides in part as follows:
"(c) All elections on initiative and referendum measures shall be held at the regular general elections, unless otherwise ordered by the Legislative Assembly. " (emphasis supplied)
Thus, the very provision which establishes the day of the general election as the day on which a referendum election shall be held, authorizes the legislature to select a different date for the election.
Other provisions of Article IV, Section 1 confirm our conclusion, and indicate that this power of the legislature may be applied to a particular measure. Subsection (3)(c) provides:
This indicates that a referendum on a particular bill may be ordered by a provision within the bill, or by a separate bill not a part of the bill to be referred. Such a provision may specify the date of the referendum election, which may differ from the date which would otherwise be applicable under subsection (4)(c) of Section 1 or any general statute."(c) A referendum on an Act may be ordered by the Legislative Assembly by law. Notwithstanding section 15 b, Article V of this Constitution, bills ordering a referendum and bills on which a referendum is ordered shall not be subject to veto by the Governor."
Subsection (4)(b) of Section 1 provides:
This also supports the authority specifically given by subsection (4)(c) to select a date for a referendum election, other than the day of the regular general election."(b) Initiative and referendum measures shall be submitted to the people as provided in this section and by law not inconsistent therewith."
Article IV, Section 1 was adopted by the people in 1968 in lieu of former sections 1 and la of Article IV. The provisions of former section 1, equivalent to subsection (4)(c) of present section 1, read as follows:
The underlined language made it clear that the legislature could, after a measure was referred, order a special election to be held on the referral before the next regular election. The more general language now contained in the Constitution (" . . . unless otherwise ordered by the Legislative Assembly") was obviously intended to broaden the legislature's options. The legislature may now by general law provide (although it has not done so) that all referred measures shall be voted on in the primary, or on some other date, whereas previously it might have been considered to be restricted to making a specific exception for each referred measure which it desired to have voted upon before the general election. No intent to bar the legislature from its previous power to act with respect to individual referred measures is evident from the change; as stated, the apparent intent of the change is to broaden rather than narrow the legislature's power."All elections on measures referred to the people of the state shall be had at the biennial regular general election, except where the legislature shall order a special election ." (emphasis supplied)
This particular change was not considered significant enough for mention either in the "Explanation by Committee Designated Pursuant to ORS 254.210" or in the "Argument in Favor" contained at pp 8-9 of the Official Voter's Pamphlet for the election of May 28, 1968. The only arguably relevant language in the "Explanation" states that the change:
" . . . would combine the initiative and referendum powers reserved to the legal voters of municipalities and districts with the initiative and referendum powers reserved to the people of the state. These repealed sections are purely 'clean-up' of the wording . . . "
In State ex rel. McPherson v Snell , 168 Or. 153, 161, 121 P.2d 930 (1942) the Court, discussing the power of the legislature to legislate concerning the referendum, stated that such power is limited by the necessity for reasonableness, and cannot hamper or render ineffective the power reserved by the people. It is beyond comprehension that legislation providing that the people shall vote on a measure early in 1972, several months after passage of the legislation and almost a year after passage of the measure to be voted on, instead of in November, 1972, could in any way be considered to hamper or render ineffective the referendum power. That power, the power of the electorate to delay the effective date of a measure only until it can be voted on, and then to approve or reject it, must be distinguished from any asserted right of opponents of a measure to delay its effective date (if it is eventually approved) to the last possible moment possible under the Constitution. This asserted right is not guaranteed by the Constitution.
In Libby v. Olcott , 66 Or. 124, 134 P. 13 (1913), the court restated the fundamental rule that since the Oregon Constitution is a restriction on the legislative power, a statute will not be held invalid unless its conflict with the Constitution is plain. In that case, the court held that a statute providing for a special election for any acts of the 1913 legislation which might be referred, was valid, notwithstanding a contention that the act somehow "diminishes and attempts to pervert and destroy the referendum power reserved to the people." 66 Or. at 139. The court said:
"What is the essence of the referendum? It is the right to approve or reject at the polls any act of the legislative assembly . . . . The law in question does not purport to disturb this element of the people's power. Neither does it in the least essay to abridge the right of any legal voter to approve or reject any measure referred." 66 Or. at 131.
Thus, in this case the contemplated legislation appears to be specifically authorized by Article IV, Section 1 (4)(c). If it is argued that the authorization is not specific, it is certainly not prohibited and would thus be valid anyway. The legislation would not abridge the referendum power, but would simply change the time of exercise of the electorate's right to approve or reject the measures in question. It is accordingly clear that the legislature may advance the date of the referendum election on House Bills 1640 and 1979, either to the May 1972 primary election or to an earlier special election.