Oregon Advisory Opinions March 27, 1979: OAG 79-42 (March 27, 1979)

OAG 79-42.

This question arises because of an amendment to the Washington County charter last year which, it may be contended, contained more than one subject.

County charters are adopted and amended pursuant to art VI, sec 10 of the Oregon Constitution. That section contains no provision similar to art IV, sec 20 relating to acts of the legislature:

"Every Act shall embrace but one subject, and matters properly connected therewith, which subject shall be expressed in the title. . . ."

The reason for including such a provision in the Constitution has been stated by the Oregon Supreme Court. In Northern Counties Trust v. Sears, 30 Or 388, 400-401, 41 P 931 (1895), the court said:

The "one subject" requirement of art IV sec 20 has been held to apply to legislation adopted by the initiative:

"The language of Article IV, Section 20, is 'every act' and therefore whether a law be an act passed by the legislative assembly under the authority of Article IV, Section 1, of the state Constitution or whether it be an act adopted by the people in the exercise of the power of the initiative as permitted by the last-mentioned section of the Constitution, it must be entitled in conformity with the requirments of Article IV, Section 20."

Turnidge v. Thompson, 89 Or 637, 651, 175 P 281 (1918). See also Molloy v. Marshall-Wells Hardware Co., 90 Or 303, 354-355, 172 P 267, 175 P 659, 176 P 589 (1918).

This doctrine was reaffirmed in Nickerson v. Mecklem, 169 Or 270, 275, 126 P2d 1095 (1942) where the court said:

Concerning constitutional amendments, Or Const art XVII, sec 1 provides in part:

Of this provision the Supreme Court said in Baum v. Newbry, 200 Or 576, 581, 267 P2d 220 (1954):

But we are dealing here not with state legislation or a state constitutional amendment. A county charter amendment is adopted under Or Const art VI, sec 10 which provides in part:

"The Legislative Assembly shall provide by law a method whereby the legal voters of any county, by majority vote of such voters voting thereon at any legally called election, may adopt, amend, revise or repeal a county charter. . . . 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, amendment, revision or repeal of a county charter. . ."

The first sentence quoted from art VI, sec 10 supra grants the legislature power to provide a "method" whereby the voters of a charter county may amend the charter. The legislature has not used this power to require that an amendment be confined to one subject. The second sentence quoted may be construed as granting to the county's voters co-equal authority to place such requirement in their charter but in any event the charter in question -- that of Washington County -- while containing several provisions relative to the manner of its amendment contains no provision requiring that an amendment be confined to one subject.

We are aware that the Oregon Supreme Court in a reinterpretation of Or Const art IX, sec 1a (prohibiting the legislature from declaring an emergency in any act regulating taxation or exemption) has held that "powers reserved to the people" under the constitution regarding state legislation are carried over to art VI, sec 10 (the county charter provision). In Multnomah County v. Mittleman, 275 Or 545, 552-553, 552 P2d 242 (1976) the court held that tax legislation adopted by a charter county could not carry an emergency clause:

"The point, as we see it, is not that Article IX, section 1a was intended in 1912 to apply to the Oregon legislature. Instead,

the point is that in 1958, when the County Home Rule Amendment was adopted as Article VI, section 10, the same 'referendum powers reserved to the people by this Constitution' relative to legislation passed by the state legislature were 'further' reserved to the legal voters of every [home-rule] county relative to . . . legislation passed by [such] counties.' For reasons previously stated, we conclude that these 'referendum powers' included, as an integral part, the power of referendum of legislation passed by counties imposing new taxes. We see nothing inconsistent with this conclusion by reason of the fact that Article IX, section 1a, was obviously enacted for the purpose of reserving to state voters the referendum power with respect to tax legislation adopted by the state 'Legislative Assembly.' "

But we do not categorize the requirement of art IV, sec 20 that an Act embrace but one subject as a part of the "powers reserved to the people" within the meaning of art VI, section 10 as construed in the Mittleman case, supra. It is rather a regulation of the manner of exercising such a power. The power of the people to amend a charter has not been so regulated by the legislature nor, in the charter county in question, has it been so regulated by the voters.

We thus conclude that the amendment of a county charter under art VI, sec 10 need not be confined to one subject.

The second question asks whether state legislation or a charter provision could impose a "one-subject" requirement on county charter amendments.

The question raises the point whether the power of the initiative could be regulated in a manner quite outside of an implied constitutional "carry over," such as in the cases described above which held that a state initiative legislative measure must be limited to one subject, or that voter-initiated constitutional amendments may be required to be submitted so as to be voted on separately.

Regarding regulation of the statewide initiative power, the Oregon Supreme Court said in State ex rel McPherson v. Snell, 168 Or 153, 160, 121 P2d 930 (1942).

"Section 1 of article IV of the constitution is self-executing, and no enabling act was required to carry it into effect . . . . Nevertheless, the enactment of legislation to aid or facilitate its operation is not only permissible but seems to be contemplated by the wording of the section . . . . Any legislation which tends to ensure a fair, intelligent and impartial accomplishment may be said to aid or facilitate the purpose intended by the constitution. . . ."

To avoid the evils which art IV, sec 20 was designed to prevent, as described by the court in Northern Counties Trust v. Sears and Lovejoy v. Portland, supra, we conclude that placing a similar limitation on initiated county charter amendments would be permissible. We further conclude that such a limitation could be validly imposed by either the legislature or the county's voters, 1 under the language of art VI, sec 10 quoted supra.