Oregon Advisory Opinions January 22, 1979: OAG 79-13 (January 22, 1979)

OAG 79-13.

These questions arise from the passage of Oregon Laws 1977, ch 163, secs 2 and 3, now codified in ORS 482.950. ORS 482.950 provides in relevant part:

"(1) A voter registration card described in subsection (1) of ORS 247.045 shall be available to any person at any field office of the Motor Vehicles Division of the Department of Transportation where license or renewal applications are distributed or received.

"(2) Each field office shall deliver in a timely manner the completed cards to the County Clerk of the County in which the voter is to be registered. . . .

"(3) Any person at least 18 years of age who applies or attempts to apply for his first Oregon license or renewal or at any field office of the Motor Vehicles Division of the Department of Transportation where license or renewal applications are distributed or received shall be:

"(a) Told that he may complete and file a voter registration card at that office, regardless of whether or not he qualifies for a license or renewal or is able to pay the license or renewal fee.

"(b) Given a voter registration card, described in subsection (1) of ORS 247.045."

In essence, then, ORS 482.950 provides that certain services are to be performed within Motor Vehicles Division offices by division employes which are outside the normal services pertaining to the adminis

tration of the division. Expenses incurred in carrying out the provisions of ORS 482.950, including such items as salaries for time spent and postage, are paid from the Motor Vehicles Division Account. ORS 481.950. The problem is that the Motor Vehicles Division Account, for the most part, consists of proceeds from motor vehicle fuel taxes and motor vehicle licensing and registration fees, which are dedicated to highway purposes by Article IX, Section 3, of the Oregon Constitution.

Article IX, Section 3, of the Oregon Constitution provides that such taxes and fees shall:

It has been declared that the moneys derived from gasoline taxes and other vehicle fees and licenses are a trust fund. State Highway Commission v. Rayson, 210 Or 593, 312 P2d 849 (1957). It has also been held that the intent of the people when they adopted Article IX, Section 3, was to guarantee that none of the proceeds of the taxes and fees listed in the amendment would be diverted to any other purpose. State ex rel Sprague v. Straub, 240 Or 272, 400 P2d 229, 401 P2d 29 (1965).

Most statutes and expenditures challenged on grounds of conflicting with Article IX, Section 3 have been concerned with the State Highway Fund. While the Motor Vehicles Division Account funds do not become part of the Highway Fund until all expenses incurred in the administration of the Motor Vehicles Division have been paid, the account is no less a dedicated fund, and its use is still restricted by Article IX, Section 3. Therefore, cases concerning limitation of the State Highway Fund for Article IX, Section 3 purposes are equally applicable to the Motor Vehicles Division Account.

In 38 Op Atty Gen 348 (1976), the Attorney General examined the use of Motor Vehicles Division Account funds in light of Article IX, Section 3. In that instance, there was a question concerning the constitutionality of a 1975 law providing for certain funds to be transferred from the Motor Vehicles Division Account to the Energy Department Account. Even in that situation where the activities of the Department of Energy in promoting petroleum energy conservation could arguably be tied to highway purposes, it was held that the dedicated funds from motor vehicle fuel taxes and motor vehicle licensing registration fees could not constitutionally be transferred. The use of these dedicated funds for purposes of providing voter registration services within the division offices, while no less commendable than energy conservation, is also no more constitutionally acceptable. Voter registration has no connection either with highway purposes, or with park and recreation activities. Therefore, these dedicated funds may not be used to carry out ORS 482.950.(fn1)

The second question concerns whether dedicated funds already expended by the Motor Vehicles Division in carrying out the provisions of ORS 482.950 must be reimbursed from the General Fund. The answer must be in the affirmative. Since the legislature has mandated that such services be provided, and since they cannot constitutionally be paid for by the Motor Vehicles Division Account fund, they must be reimbursed from the General Fund.

In an analogous situation, in 37 Op Atty Gen 1446 (1976), certain transfers of funds were made from the Oregon War Veterans Bonds Sinking Fund to the General Fund, the Common School Fund and the United States to acquire the Boardman Space Age Industrial Park. The Attorney General held that such disbursements conflicted with the dedicated purpose of the fund under Article XI-A, Sections 1 and 2 of the Oregon Constitution. It was also held that since the only moneys that could properly be used for such a project are those devoted to general government purposes, the General Fund should make a reimbursement for all of the unconstitutional expenditures, not just those unconstitutionally transferred to the General Fund. See State ex rel Sprague v. Straub, supra; Cross of Malta Bldg. Corp. v. Straub, 257 Or 376 476 P2d 921, 479 P2d 505 (1971).

The same type of situation exists in this instance. Where constitutionally dedicated funds have been unconstitutionally expended and only those funds devoted to a general government purpose, i.e. the General Fund, should have been used, moneys from this general government purpose fund should be used to replenish the constitutionally dedicated fund.