Oregon Advisory Opinions December 14, 1979: OAG 79-132 (December 14, 1979)

OAG 79-132.

A mass transit district operates under authority of ORS 267.010 to 267.390 and has authority to enact ordinances. See ORS 267.150, 267.360, 267.370, and 267.385.

ORS 267.170, as amended by Oregon Laws 1979, ch 190, sec 411, provides that the voters of such a district may exercise the powers of initiative and referendum with reference to legislation of the district board in accordance with ch 190, secs 280 to 313. Section 288 amends ORS 259.090(1) to provide that:

"The district election authority shall prepare the ballot title for a measure referred by the authority . . . ."

It may be contended that the reference in ORS 259.090(1) to "a measure referred by the authority" assumes that the district board of a mass transit district does have authority to refer a measure to district voters and that without such authority, that phrase would be meaningless.

That is not so. A mass transit district is only one of 24 types of districts governed by the election procedure provided in ORS ch 259 as revised by Oregon Laws 1979 ch 190, secs 280 to 313. See ORS 259.020 as amended by section 281.

For example, ORS 451.487 relating to county service districts, governed by the same election procedure, specifically provides that a referendum of an order of the district for construction and financing of service facilities "may be ordered by resolution of the governing body of the district." Similar provisions for referendum by a governing body can be found in ORS 450.867 relating to a sanitary authority, and ORS 268.320 relating to a metropol-

itan service district. Both are among the 24 types of districts included in the same election procedures as a mass transit district.

It is readily seen that the direction in ORS 259.090(1) in the case of "a measure referred by the authority" is not meaningless even though in the case of a mass transit district the district board does not have authority to refer a measure to the district voters.

Former ORS 198.580, repealed by Oregon Laws 1979, ch 190, sec 431, provided that:

"An election shall be called by a district board for the purpose of submitting an ordinance to the voters for their approval or rejection:

"(a) Upon motion of the district board . . . ."

The "Final Report of the Advisory Committee on Election Law Revision," December, 1978, which contains the initial draft of what became Oregon Laws 1979, ch 190, indicates that omission of this provision was inadvertent. At page 473 of the report, where repeal of ORS 198.580 is proposed, a note in the margin indicates that it would be carried into what is now Oregon Laws 1979, ch 190, sec 295. However, section 295 now covers only a procedure for referendum by petition.

The procedure for carrying out the power of referendum granted to the voters of a district in Or Const art IV, sec 1(5), is provided in ch 190, sec 295(1):

"A petition to refer a district measure must be signed by not less than 10 percent of the electors registered in the district. The petition must be filed with the elections officer not later than the 30th day after adoption of the district ordinance sought to be adopted."

The generally applicable 10 percent figure, however, is reduced for mass transit districts. ORS 267.170(2), as amended by Oregon Laws 1979, ch 190, sec 441, establishes different and much lower signature requirements for initiative and referendum petitions in mass transit districts, than for special districts generally. A referral of an ordinance adopted by a mass transit district board may be ordered by petitions signed by only four percent of the number of voters who voted for Governor in the district at the last four-year gubernatorial election. ORS 267.170(2)(b)(A).

But there is no provision for the district board of a mass transit district to itself refer an ordinance to a vote of the people.

"It is an elementary principle that there can be no valid election except in pursuance of constitutional or statutory authority and regulation." State ex rel Swan v. Kozer, 115 Or 638, 640, 239 P 805 (1925).

Thus, no election can be held on the basis of an attempted referral of an ordinance to the voters by action of the district board.

"If a mass transit district was initiated by a resolution pursuant to ORS 267.107, the district shall not use any method of financing . . . [except service charges and user fees, and federal grants] without first obtaining authorization at a properly called election held for that purpose."