Oregon Advisory Opinions July 17, 1974: OAG 74-61 (July 17, 1974)
Collection: Oregon Attorney General Opinions
Docket: OAG 74-61
Date: July 17, 1974
Advisory Opinion Text
OAG 74-61.
May an initiative question of an advisory nature be placed on the ballot in Multnomah County?
ANSWER GIVEN
No; although such an advisory question may be placed on the Multnomah County ballot by initiative if an enabling ordinance is enacted, or directly by a referring ordinance.
This question arises out of a preliminary initiative petition filed with the Multnomah County Registrar of Elections. The question which would appear on the ballot, if sufficient signatures are collected and if the question may legally be placed on the ballot, is as follows:
"Should the Multnomah County Board of Commissioners approve the construction of a new freeway-transitway, having provision for both privately-owned vehicles and mass transit, extending from the Willamette River in Portland, Oregon, eastward through southeast Portland and Multnomah County to the Gresham area?"
The intent of the sponsors, we understand, is for the vote on the question to be purely advisory, without binding the Commission to act in accordance with the results of the vote. This is consistent with the quoted language which does not use the mandatory "shall" and in other respects is insufficiently specific to require any particular action.
We first conclude that the constitutional reservation of the initiative and referendum powers to the voters of Multnomah County does not require the proposed question to be placed on the ballot. The constitutional provision is as follows:
Under subsection (2) the initiative power is ". . . to propose laws and amendments to the constitution . . ." Art IV, § 1(2)(a). The referendum power is to approve or reject any " Act " (except acts bearing emergency clauses) of the Legislative Assembly. Art IV, § 1(3)(a)."The initiative and referendum powers reserved to the people by subsections (2) and (3) of this section are further reserved to the qualified voters of each municipality and district as to all local, special and municipal legislation of every character in or for their municipality or district. The manner of exercising those powers shall be provided by general laws . . ." (emphasis supplied) Or Const art IV, § 1 (5)
It has been consistently and uniformly held that the initiative and referendum power thus granted apply only to legislation, that is to a rule of conduct prescribed by the controlling authority. It does not apply to legislative resolutions, memorials and the like. Herbring v. Brown , 92 Or 176, 180 P 328 (1919). Thus in the Herbring case it was
held that ratification of the prohibition amendment (US Const Amdmt XVIII), not being legislation, was not subject to referendum. And several cases hold that municipal acts of an administrative rather than legislative nature are not subject to referendum. E.g., Campbell v. City of Eugene , 116 Or 264, 240 P 418 (1925).
Similarly it was held in 26 Op Atty Gen 183 (1953) that it is not within the scope of the people's initiative power to place upon the ballot and vote upon an advisory question relating to development of the power resources of the Snake River; and in 33 Op Atty Gen 428 (1967) that an advisory question on the Viet Nam war could not be placed on the ballot by initiative.
This rule seems to be well settled. If an act of the legislature is not a law, an "Act," legislation, i.e. something which creates a right or rule of conduct, it is not subject to referendum; and an initiative must similarly propose a law. The question proposed for the Multnomah County ballot would be purely advisory, without binding effect, creating no rights or obligations, establishing no rule of conduct.
However, to conclude as we do that Or Const art IV, § 1(5) creates no constitutional right in the voters to place this question on the ballot by initiative does not require us to also conclude that it would be improper for the county charter, or ordinances enacted pursuant to it, to grant such a right to the voters of Multnomah County.
It is true that there is no inherent power of the people to hold an election except as authorized by law. State ex rel. Everding v. Simon , 20 Or 365, 26 P 170 (1891); State ex rel. Swan v. Kozer , 115 Or 638, 239 P 805 (1925); State ex rel. Bylander v. Hoss , 143 Or 383, 22 P2d 883 (1933). But the power of the legislature is plenary; it may act in any manner not limited by the Oregon Constitution or federal law. Wright v. Blue Mt. Hospital Dist ., 214 Or 141, 328 P2d 314 (1958). The failure of the constitution to grant the initiative power with respect to matters which are not "legislation" does not bar the legislature from extending that power, and providing for elections, for matters which are not legislation. Thus in 33 Op Atty Gen 428, 429, it was stated:
"This principle, together with the fact that the Oregon Constitution has specifically vested in the legislature general control over Oregon elections impels us to conclude that there exists full power in the body to place on the ballot a question such as you suggest [i.e. advisory] by the enactment of a statute so providing."
Although no such legislation exists, similar powers are granted to Home Rule counties by Or Const art VI, § 10, and to all other counties by ORS 203.035. This authority is granted in very general terms over "matters of county concern."
We note that art VI, § 10 provides in part:
"The initiative and referendum powers reserved to the people by this Constitution hereby are further reserved to the legal voters of every county relative to the adoption, [etc.] . . . of a county charter and to legislation passed by counties which have adopted such a charter." (emphasis supplied)
In our opinion, this is merely a restatement of the provisions of art IV, § 1(5), and accordingly would also be applicable to legislation of a non-Home Rule county. But this is a statement of the constitutional initiative and referendum power, and not a limitation on the authority of counties to further extend this right to matters which are not "legislation."
We have implied above that it would be permissible for a county to provide by legislation (charter or ordinance) for popular vote on advisory non-legislative questions, to the same extent as the legislature may do so. This would of course require a "county concern" to exist. Of course a county could in aid of its legislative process hold hearings to determine the views of the public on any legitimate subject of county legislation, and even on subjects of county administrative action. If so, we believe a county could commission a private poll for the same purpose. And we see no reason why a county could not by ordinance refer a question to the voters for non-binding advice, for exactly the same purpose, or provide a means by initiative and election or otherwise for the voters to make known their views to the county governing body. We have no difficulty in seeing a "county concern" in any of these methods of informing the county governing body of the desires of the voters.
We do not address the question of whether the county could provide for advisory elections on questions where the county itself lacks power to act. Authorization of a vote on the Viet Nam war question, for example, would be of questionable
validity, since no county governing body has any power to act on matters relating to foreign policy or the conduct of national defense. The legislature's power is plenary, as we have stated; a county's power is strictly limited to matters of county concern.
But the location of a freeway-transitway within Multnomah County is a matter of concern to the county. For purposes of this opinion we do not consider the respective authorities of the Highway Division and the county relating to the construction of such a system, but assume the county governing body has some say in its location or whether it will be constructed at all. If this is the case, legislation permitting an advisory vote on the question would be a matter of county concern.
Does the Multnomah County charter so provide?
On questions of interpretation of a county charter this office is not the appropriate source of a definitive opinion. Responsibility for such a ruling rests upon the county's own legal officer, the District Attorney or County Counsel. Having concluded that state law does not prohibit the proposed initiative from going on the ballot, election officers would be justified in placing it on the ballot if the county legal officer concludes that it is proper under the county charter and ordinances. This is so even if we further conclude (as we do) that the county charter is not sufficient to place the question on the ballot in the absence of an enabling ordinance.
We nevertheless further respond to your question, although our conclusion can only be advisory in nature.
Section 2.10(1) of the Multnomah County Charter provides:
"Except as this charter provides to the contrary, the county shall have authority over matters of county concern to the fullest extent granted or allowed by the constitutions and laws of the United States and the State of Oregon, as fully as though each particular power comprised in that general authority were specifically listed in the charter."
Section 2.20 provides:
"Except as this charter or a state constitutional or statutory provision regarding the initiative and referendum provides to the contrary, the legislative power of the county shall be vested in and exercisable only by the board of county commissioners . . ."
Section 5.10 provides:
"All legislative action by the county shall be by ordinance."
Section 11.30(1) provides:
"Except as this charter or the ordinances of the county provide to the contrary , the voters of the county may exercise the initiative and referendum with reference to county propositions in the manner prescribed by state law." (emphasis supplied)
Construing these provisions together, we conclude that section 11.30(1) directly permits exercise of the initiative only as prescribed by state law. State law does not prescribe use of the initiative for an advisory vote, or on any matter which is not "legislation"; and state law does not prescribe a referendum on any non-legislative act of the legislative body. But section 11.30(1) does permit the ordinances of the county to provide to the contrary with respect to any matter which is a "county proposition." Sections 2.10(1), 2.20 and 5.10 permit the county commissioners, by ordinance, to
legislate on any matters of county concern. We presume that the term "proposition" is intended to have a meaning broader than "legislation" or "ordinance." We thus conclude that the Board of County Commissioners does have power, by ordinance, to permit use of the initiative or referendum to provide for a vote on "county propositions" which are not "legislation."
We accordingly conclude that the proposed initiative question could be placed directly on the ballot by ordinance, or that if an enabling ordinance is enacted it could be placed on the ballot by initiative petition. But we know of no such enabling ordinance. In its absence, the rule stated supra on page 4 that there is no inherent power of the people to hold an election except as authorized by law, remains applicable. We accordingly conclude (unless there is an enabling ordinance of which we are unaware) that even though the proposed question is a "county proposition" it cannot be placed on the ballot without further action by the Board of County Commissioners.