Oregon Advisory Opinions September 26, 1947: OAG 47-202 (September 26, 1947)
Collection: Oregon Attorney General Opinions
Docket: OAG 47-202
Date: Sept. 26, 1947
Advisory Opinion Text
OAG 47-202.
County funds obtained under provisions of chapter 453, Oregon Laws 1945, may be expended only under direction of the county court.
Dear Sir: I am writing you in response to a request of Honorable W. W. Balderree, city attorney of Grants Pass, dated September 22, 1947, with reference to opinion No. 406, rendered to you by this office July 17, 1947, as to whether or not the effect of chapter 409, Oregon Laws 1945, had been considered in the rendition of said opinion.
Your question upon which that opinion was given was whether or not disbursements of money "now in the treasurer's hands", collected pursuant to a tax levy authorized by the people of Josephine county at an election held for that purpose on May 17, 1946, for the levying of taxes for the fiscal tax years 1946-1947, 1947-1948 and 1948-1949, outside of the limitations imposed by Article XI, section 11 of the constitution, come within the provisions of section 100-1325, O. C. L. A., as amended, or whether the spending of this entire sum is under the sole discretion of the county court.
Since you did not state in your request of July 17, 1947, under which statute the election was held, I took it from what was said therein that the election was held under chapter 16, title 100, O. C. L. A., the county road fund bonding act, which provides among other things, that county warrants may be issued in lieu of bonds after authorization by an election (section 100-1618, O. C. L. A.) and that all moneys raised thereby are to be used under the exclusive jurisdiction of the county court (section 100-1613, O. C. L. A.). However, it appears from the statement of Mr. Balderree, that said election was held pursuant to the provisions of chapters 409 and 453, Oregon Laws 1945.
Though the election was held under chapter 453, Oregon Laws 1945, I am impelled to the same conclusion as in my former opinion.
It appears plain that chapter 409, Oregon Laws 1945, is not applicable to the instant case for the following reasons:
1. The provisions of section 100-1325, O. C. L. A., as amended, are applicable only to funds derived from tax levies within the constitutional limitation.
2. Chapter 409, Oregon Laws 1945, filed in the office of the secretary of state March 26, 1945, amends section 1, chapter 177, Oregon Laws 1943, which was an act authorizing the establishment of sinking funds for tax levies within the constitutional limitation: Article IX, section 11, Oregon constitution, and its effectiveness was only "for the duration of the existing war and for not more than three years after termination thereof.": section 3.
3. Chapter 177, Oregon Laws 1943, was repealed by chapter 453, Oregon Laws 1945, filed in the office of the secretary of state March 28, 1945, and no rights could have "vested thereunder" (section 8) as a result of an election held May 17, 1946.
4. The tax in the instant case was voted to be outside of the constitutional limitation.
Chapter 453, Oregon Laws 1945, is an act complete within itself, authorizing counties and other municipal corporations to provide funds by taxation, either within or without the constitutional limitation "for financing of public projects, property, and equipment, and of repairs and improvements thereto and of maintenance and replacement thereof." Elections held within counties under this statute "shall be called by the county courts" and "held under the provisions of section 100-1610, O. C. L. A., and related code sections": section 4.
Section 100-1610, O. C. L. A., pertains to the holding of all elections for the purpose of authorizing the issuance of bonds "for the construction and maintenance of permanent roads": section 100-1601, O. C. L. A.
Section 3, chapter 453, Oregon Laws 1945, provides the purpose for which funds may be obtained; namely, "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." By section 6 it is declared that:
"All funds received by any subdivision pursuant to the authority of this act shall be kept by the treasurer or other financial officer thereof in a fund or funds separate and distinct from other funds of the subdivision and be retained or expended only for the purpose for which the funds were created. * * *"
The election May 17, 1946, was "for the purpose of providing funds with which to maintain, grade, oil and pave permanent County Roads and to obtain equipment and replacements for such purposes . . .".
Section 100-1325, O. C. L. A., as amended by chapter 36, Oregon Laws 1945, was originally enacted as section 24, chapter 299, Oregon Laws 1917, "to provide for surveying, opening, constructing, improving, reconstructing, repairing and maintaining public roads", and authorized the "levy of a tax not more than Ten Mills on the dollar on all taxable property" and that all moneys collected thereunder "shall be set apart in the county treasury as a general road fund", to be "apportioned to the several road districts, including districts composed of incorporated cities and towns."
No provision is made for the distribution to any other fund of the moneys obtained under the authority of chapter 453, Oregon Laws 1945, except as to unexpended balances remaining after disbursement of the funds for the purposes for which they were provided "upon approval of the governing body" when the same "may be transferred to the general fund of the subdivision." The phrase "general fund", without any other designation, is generally intended to mean funds for general county purposes and not the general road fund used for general road purposes: section 110-817, 110-1204, 110-1211 and 110-1217, O. C. L. A.
It is a well settled rule of statutory construction that when enacting statutes the legislature is presumed to be aware of existing laws and conditions, and it is common knowledge that at the time of the enactment of chapter 177, Oregon Laws 1943, because of the lack of funds, "county roads, bridges and ferries" had become badly in need of repair. Clearly, its enactment was to meet this situation by authorizing the
establishment of sinking funds for that purpose.
It was also common knowledge at the time of the enactment of chapter 453, Oregon Laws 1945, for the same reasons, that some county roads and bridges were still in need of repair and that the "general roads funds" authorized by section 100-1325, O. C. L. A., as amended, were still inadequate; that the "duration of the existing war" was nearing an end and the need of further funds, not only for roads and bridges, but for "any project, property or equipment . . . repairs and improvements thereto and of maintenance and replacement thereof", was apparent.
So far as I am able to determine, chapter 453 contains no provisions indicating the legislative intent that money authorized thereby should be distributed or expended in any other way than by the "governing body" and "only for the purpose for which the funds were created": section 6. It follows, therefore, that in the absence of a specific designation, the county court, the governing body in this instance, is the only agency authorized to disburse funds pursuant to the provisions of said chapter 453. Such authority is granted by section 93-302, O. C. L. A., as amended by chapter 399, Oregon Laws 1945, subsection 9, which provides as follows:
"To have the general care and management of the county property, funds and business, where the law does not otherwise expressly provide; . . ."
It is a cardinal principle of law that public officers whose power and authority are created by statute are limited in their powers and have no other or apparent powers: State v. Deschutes Land Co., 64 Or. 167, 175; Wallace and Co. v. Ferguson, 70 Or. 306, 310.