Oregon Advisory Opinions February 28, 1945: OAG 45-32 (February 28, 1945)
Collection: Oregon Attorney General Opinions
Docket: OAG 45-32
Date: Feb. 28, 1945
Advisory Opinion Text
OAG 45-32.
Engrossed Senate Bill 62, requiring a vote of the people before a peoples' utility district may acquire facilities used for distribution of electrical energy outside the district, contravenes section 12 of Article XI of the constitution of Oregon.
Hall of Representatives
Dear Mr. Barry: Under date of February 26, 1945, you request me to advise you whether or not in Engrossed Senate Bill 62 the matter beginning with the word "provided" in line 19, page 1, to and including the word "thereof" in line 12, page 2, in my opinion is in conflict with Article IV, section 1a, and Article XI, section 12, of the constitution of Oregon.
Section 114-245, O. C. L. A., reads as follows:
"The peoples' utility districts herein provided for shall have power:
"1. To have perpetual succession.
"2. To adopt a seal and alter it at pleasure.
"3. To sue and be sued, to plead and be impleaded.
"4. To acquire and hold real and other property necessary or incident to the business of such districts, within or without, or partly within or partly without, the district, and to sell or dispose of such property; to acquire, develop and otherwise provide for a supply of water for domestic and municipal purposes, waterpower and electric energy; to distribute, sell and otherwise dispose of water, water-power and electric energy, within or without the territory of such districts; * * *."
It is proposed to amend said section by Senate Bill 62, by adding the following:
"provided, that, except as to distribution facilities located in unincorporated territory at or near the boundaries of the district and forming an interconnected part of the distribution system within such district, no facilities then being used for the distribution of electric energy outside the boundaries of the district shall be acquired by it until the acquisition thereof shall be approved by qualified voters of the territory in which such facilities are located at an election duly called for that purpose as hereinafter provided; provided, however, that if a part of such facilities are located within a municipality or municipalities, the election shall be conducted so that the voters residing therein may vote separately and their votes counted separately, and the part within any such municipality or municipalities may not be acquired unless a majority of the qualified voters voting at such election therein approved thereof."
The authority to create peoples' utility districts is conferred by section 12 of Article XI, of the constitution, which reads as follows:
"People's utility districts may be created of territory, contiguous or otherwise, within one or more counties, and may consist of an incorporated municipality, or municipalities, with or without unincorporated territory, for
the purpose of supplying water for domestic and municipal purposes; for the development of water power and/ or electric energy; and for the distribution, disposal and sale of water, water power and electric energy. Such districts shall be managed by boards of directors, consisting of five members, who shall be residents of such districts. Such districts shall have power:
"(a) To call and hold elections within their respective districts.
"(b) To levy taxes upon the taxable property of such districts.
"(c) To issue, sell and assume evidences of indebtedness.
"(d) To enter into contracts.
"(e) To exercise the power of eminent domain.
"(f) To acquire and hold real and other property necessary or incident to the business of such districts.
"(g) To acquire, develop, and/or otherwise provide for a supply of water, water power and electric energy.
"Such districts may sell, distribute and/or otherwise dispose of water, water power and electric energy within or without the territory of such districts.
"The legislative assembly shall and the people may provide any legislation, that may be necessary, in addition to existing laws, to carry out the provisions of this section."
It is noted that said section does not require a vote of the people as provided in the proposed amendment shall be obtained as a condition precedent to the exercise by peoples' utility districts of the power to acquire such property. The last paragraph of said section provides that the legislative assembly shall and the people may provide any legislation that may be necessary, in addition to existing laws, to carry out the provisions of this section. This section is a grant of power and cannot be enlarged by the legislature or by the people, except to the extent that may be necessary, in addition to existing laws, to carry out its provisions.
At the time this section of the constitution was adopted by the people there were no existing laws for carrying out the provisions of said section. Subsequent to that time the legislature by section 114-245, O. C. L. A., as amended by chapter 287, Oregon Laws 1941, provided what power peoples' utility districts may exercise. Among other parts of said section is a provision as to how any power within or without the district necessary for the carrying out of the provisions of the act might be exercised, and among other things provided for the exercise of the power of eminent domain for such purposes.
It appears that until 1943, when a similar amendment to section 114-245 was proposed but not enacted, the legislature did not find it to be necessary that such a provision be added to the law to carry out the provisions of said section.
In an opinion of this office dated February 27, 1943, Opinions of the Attorney General, 1942-1944, page 154, Honorable Vernon D. Bull, Representative, was advised that the legislature shall not provide any legislation which is not necessary to carry out the powers of such districts, and that the addition of additional requirements such as are contained in the proposed amendment would constitute an attempted limitation by the legislature upon the grant of powers conferred by section 12, Article XI, of the constitution.
The amendment offered during the 1943 session to section 114-245 in Senate Bill No. 261 does not vary in principle from the amendment herein proposed and under consideration, hence the query, is the legislation necessary, in addition to existing laws, to carry out the provisions of and accomplish the purpose of the constitution.
My attention has not been called to and I have not been able to find any ground or reason why it is necessary to attach such limitation to the exercise of power granted by the constitution.
It is my opinion that the proposed amendment is not necessary and does not add to the power of the peoples' utility district in acquiring distribution facilities, but is a limitation upon the power conferred by requiring a vote of the qualified voters in the territory to be acquired, and by reason thereof is in conflict with said section 12 of Article XI, of the constitution.