Oregon Advisory Opinions August 16, 1946: OAG 46-147 (August 16, 1946)

Oregon Attorney General Opinions

1946.

OAG 46-147.

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Peoples' Utilities Districts are required to give special notice of special election for organization of district, and publish same separate from notice of general election on the same day.

Dear Sir: In your letter of August 14, 1946, you request to be informed regarding procedure in an election for the formation of a peoples' utility district, with particular reference to whether or not notice of a special election to be held concurrently with the general election November 5, 1946, should be a separate notice or if it should be made a part of the general election notice.

Section 114-221, O. C. L. A., which relates to elections on the question of the formation of such districts, provides:

"Forty-five days before any election hereinbefore provided for, the commission shall notify the county clerk of the county or the county clerks of the counties, in which an election is to be held, and supply such county clerk or county clerks with official notice of such election, which notice shall state the time of such election and shall contain a clear, concise statement of the question to be voted upon, and any recommendation or statement relative to that question that the commission may deem expedient, such recommendation not to exceed 1,000 words. The county court of each county in which any part of a proposed district is located shall publish and/or post a notice of such election in the same manner and for the same length of time as hereinbefore provided for publishing and/or posting notices of hearings on voters' preliminary petitions. Such notice by the county court shall contain a designation of the polling places in such election. The county court shall, in its discretion, designate the number and location of the polling places in such election; provided, that all such designated polling places shall be located within the boundaries of the proposed district."

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Section 114-205, O. C. L. A., provides:

"Upon the filing with the commission of any voters' preliminary petitions and any municipal preliminary petitions, the said commission forthwith shall examine such petition, and if it is found to comply with the provisions of this act, set a time and place for hearing said petitions, not less than 30 days nor more than 60 days after the filing thereof, and shall proceed to make a preliminary investigation as to the matters referred to in said petitions. The commission shall give notice of such hearing by publishing a notice giving the time and place of hearing, such notice to be published for not less than once a week for two successive weeks prior to the date fixed for hearing, in a newspaper of general circulation published in such territory. If there be no such newspaper published in said district, the commission shall cause notices to be posted for not less than 14 days in not less than 10 public places in each separate parcel of territory thereof. Said hearing on said preliminary petitions may be adjourned from time to time, but not longer than 30 days in the aggregate from the date fixed by the commission for the hearing of said petition."

In Hanson v. Malheur County et al., 160 Or. 579, the Court said:

"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."

It is my opinion that § 114-205, O. C. L. A., requires notice of the special election to be a special notice. It provides that the commission shall give notice of a hearing by publication in a newspaper in the manner therein specified, and § 114-221, O. C. L. A., provides that the county court shall publish and/or post a notice of such election in the same manner and for the same length of time as hereinbefore provided by publishing or posting notice for hearings on voters' preliminary petitions.

Section 114-205, O. C. L. A., further provides that if there is a newspaper of general circulation published in such territory, the notice shall be published. Consequently, notice of the special election must be given by publication in the manner required by the statutes referred to, separate and apart from the notice of general elections to be held at the same time and place as special elections.

You further request that I outline the procedure to be followed with reference to this notice, in detail, based upon the fact that the election will be held concurrently with the general election as above stated.

The procedure is specified by §§ 114-221 and 114-205, O. C. L. A.

Section 114-221, O. C. L. A., further requires the county court, in its discretion, to designate the number and location of polling places in such election and that they shall be within the boundaries of the proposed district.

Section 114-223, O. C. L. A., requires the question to be submitted by a separate ballot, so prepared by the county clerk that the question submitted may be decided by a yes or no vote, and that the county court shall appoint one judge and two clerks for each polling place designated, and that only qualified voters shall be authorized to vote at such elections.

In Opinions of the Attorney General, 1936-1938, page 575-578, it is said:

" 'While there is no doubt that the safer and better procedure would be to publish the description of the boundaries of the proposed peoples' utility district in full, it is my opinion that in the absence of statutory requirement that such detailed description shall be included in the notice, a statement therein that a detailed description of the boundaries of the proposed district is on file in the office of the county clerk and may be examined by any person interested, and that printed copies of the description may be obtained from the state hydroelectric commission at Salem, Oregon, would afford sufficient notice to comply with the statute.

" 'Whether or not the detailed description shall be published is a matter within the discretion of the county courts of the respective counties affected. If, however, a detailed description is to be included in the notice, it should be a description of the entire district and not only that portion located in the county in which the notice is given.' * * *"

For further information relating to publication of notice of election, see: Opinions of the Attorney General, 1936-1938, page 580; Opinions of the Attorney General, 1934-1936, pages 608 and 614.

Section 114-243, O. C. L. A., provides:

"In case any election hereunder, whether called by the commission or by the board, is held concurrently with an election in a municipality or county containing in whole or in part the same territory as the district, the judges and clerks of such election shall serve as election officials of the district election."

See also: Opinions of the Attorney General, 1940-1942, page 80.