Oregon Advisory Opinions March 12, 1946: OAG 46-52 (March 12, 1946)
Collection: Oregon Attorney General Opinions
Docket: OAG 46-52
Date: March 12, 1946
Advisory Opinion Text
OAG 46-52.
Election under chapter 453, Oregon Laws 1945, for the purpose of constructing county market roads and bridges may be held at the primary nominating election.
An election for issuance of road bonds is a special election, although held on the same day by the same officers as a general election.
Procedure for conducting election outlined herein.
The county court need not specify particular roads to be improved nor amount to be spent on each road.
Dear Sir: In your letter of March 6, 1946, you state:
"The County Court proposes to call an election under the provisions of Chapter 453 Oregon Laws 1945, for the purpose of construction and improving market roads and bridges in the county, and to ask the voters to approve the levy of 150,000.00 dollars each year for five years to create a fund of $750,000.00 for this purpose, the same being without the limitation imposed by article XI Section 11, of the constitution. It is further proposed that this election be held May 17, at the same time as the general primary election."
You call attention to the fact that chapter 453 provides that elections shall be held in the same manner and at the same time at which elections are held under the provisions of § 100-1610, O. C. L. A., and related code sections, and request my opinion upon the following questions which will be answered in their order:
1. "Can this election be held on May 17, 1946, that being the primary nominating election."
Section 4 of said chapter 453 provides:
"Elections held within counties for the purposes stated in this act shall be called by the county courts or boards of county commissioners thereof and be held in the same manner and at the same times at which elections may be called and held under the provisions of section 100-1610, O. C. L. A., and related code sections; elections held within other subdivisions for the said purposes shall be called and held in the manner in which bond elections may be called and held in said subdivisions. The voting requirements, if any, that apply to the said bond elections shall apply equally to elections held under authority of this act. The order, resolution, or ordinance, as the case may be, pursuant to which such an election is called and held shall set forth the purpose for which the funds to be provided by the said tax levies are to be expended; the estimated total outlay for said purpose; the period, not exceeding 10 years, during which the proposed taxes are to be levied; and the question of whether or not the proposed taxes are outside the limitation imposed by article XI, section 11 of the constitution of the state of Oregon. If more than one proposition is submitted to the voters at the same election, the several propositions shall be voted upon separately; but not more than two separate propositions may be submitted to the electors under the provisions of this act within a single year."
Section 100-1610, O. C. L. A., part of the county road bonding act, provides in part as follows:
"The county court of its own motion may submit the question of issuing bonds for the purpose mentioned in
section 100-1601 at any general election. * * *"
A primary nominating election is a general election within the meaning of § 100-1610, O. C. L. A.: Taylor v. Multnomah County, 119 Or. 123; Hanson v. Malheur County, 160 Or. 579.
You next ask:
2. "In calling the election is it designated as a special election", citing 160 Or. 579.
Hanson v. Malheur County et al., 160 Or. 579, relates to elections to be held pursuant to what is now § 100-1604, O. C. L. A. The court said, page 582:
"Said section 44-2004, Oregon Code 1930, among other things, provides that upon approving the petition of the required number of registered voters therefor, 'the county court shall then make an order directing that a special election shall be called and held in that county for the purpose as specified in the petition at a time to be then fixed by the court, which shall not be less than twenty nor more than forty days after the date of making the order.'
"The order of the county court appointed May 20, 1938, as the day upon which the question of the proposed bond issue should be submitted to the voters of Malheur county. That was the day upon which a primary nominating election was held. A primary nominating election is a general election: Taylor v. Multnomah County, 119 Or. 123, 248 P. 167. An election for issuance of road bonds is a special election although held on the same day by the same officers as a general election: Wilson v. Wasco County, 83 Or. 147, 163 P. 317; Norton v. Coos County, 113 Or. 618, 233 P. 864; Hill et al. v. Hartzell, 121 Or. 4, 252 P. 552."
You next ask:
3. "In making out the notice, must the form provided by Section 100-1606 be followed as closely as possible, and especially must the notice include a description of the roads to be improved, and the amount to be expended on each road. (160 Or. 579)."
Your attention is again directed to § 4 of chapter 453, Oregon Laws 1945, relating to what shall be set forth in the order, resolution or ordinance, and the direction that elections may be called and held under the provisions of § 100-1610, O. C. L. A., and related code sections.
The word "related" is judicially defined in Nowland Realty Co. v. Commissioner of Internal Revenue, (C. C. A.) 47 F. (2d) 1018, 1021, to mean "standing in relation, connected". As applied to § 4 of chapter 453, it would include other sections in the act of which § 100-1610 is a part, and of acts relating to the same subject matter.
Section 100-1606 is part of the same act, and provides the form of special notice at special elections provided for in said act. It reads in part as follows:
"Whenever a special election shall be ordered as provided in this act the county court shall cause printed notices thereof, signed by the county clerk, to be posted in like manner as notices of a general election are now posted, which notices shall particularly specify the amount of bonds proposed to be issued, the length of time they shall run, and the maximum rate of interest they shall bear, the road or roads to be improved, and the amount to be expended on each. These notices shall be posted at least twenty days before the date of election and shall be substantially the following form:".
You refer to §§ 81-2118, 81-2109 and 81-2110, O. C. L. A. They constitute parts of chapter 21, title 81, O. C. L. A., relating to initiative, referendum and municipal elections. I do not think they come within the meaning of the term "related", as used in § 4, chapter 453, Oregon Laws 1945.
You also refer to § 110-1101 et seq., O. C. L. A., which is part of chapter 11, title 110, O. C. L. A., relating to elections upon questions of increasing tax levies over constitutional limitations. Although not directly related to the subject matter of chapter 453, Oregon Laws 1945, the provisions of said chapter relating to the manner of conducting an election, notice to judges and clerks of election in § 110-1103, may be used where applicable.
You further ask:
"In calling the election should the court designate the roads to be improved and the amounts to be spent on each road."
I again refer you to § 4, which provides:
"* * * The order, resolution, or ordinance, as the case may be, pursuant to which such an election is called and held shall set forth the purpose for which the funds to be provided by the said tax levies are to be expended; the estimated total outlay for said purpose; * * *."
This does not require a specification of the particular roads to be improved and the amount to be used in improving each,
and it is my opinion that the act differs in that respect from acts which authorize the holding of an election for the purpose of voting upon the question of creating funds for a specific purpose. The purpose for which the funds derived from such levy may be obtained is stated in § 3 to be financing the cost of any project, property or equipment which a subdivision has lawful power to construct or to acquire, and of repairs and improvements thereto and of maintenance and replacement thereof.
However, since § 4 of chapter 453 directs that elections may be called and held under the provisions of § 100-1610, O. C. L. A., and related code sections, and § 100-1606 directs that printed notices of special elections shall specify the road or roads to be improved and the amount to be expended on each, it would be well, if possible, to provide such information in the notice of election to be held pursuant to said chapter 453, if such information is available.