Oregon Advisory Opinions February 15, 1950: OAG 50-21 (February 15, 1950)
Collection: Oregon Attorney General Opinions
Docket: OAG 50-21
Date: Feb. 15, 1950
Advisory Opinion Text
OAG 50-21.
District Attorney, Benton County
Dear Sir: Under date of February 10, 1950, you state that a number of citizens of Benton county are interested in a millage levy outside the 6 per cent limitation to be used by the county for the purpose of making the facilities of the Corvallis city library available to the county at large, as provided in § 111-3521 et seq., O. C. L. A., and that it is proposed to seek the levy under the provisions of chapter 453, Oregon Laws 1945. You then state:
"I would appreciate very much your opinion as to whether or not a certificate of necessity given by the County Court, in accordance with the terms of Section 110-1104 O. C. L. A. as amended by chapter 511 of Oregon Laws of 1947, is necessary before holding an election under the provisions of Chapter 453 of Oregon Laws of 1945."
Section 11, article XI, of the constitution, so far as pertinent, provides that:
"Unless specifically authorized by a majority of the legal voters voting upon the question neither the state nor any county, municipality, district or body to which the power to levy a tax shall have been delegated shall in any year so exercise that power as to raise a greater amount of revenue * * * than the total amount levied by it in the year immediately preceding * * * plus six per centum thereof; * * *."
Chapter 453, Oregon Laws 1945, is a general statute enacted for the purpose of authorizing counties and other political subdivisions to provide funds by taxation or otherwise, either without or within the limitation imposed by article XI, section 11, of the constitution for financing of public projects, etc., and provides in part as follows:
"Section 2. That upon approval of a majority of the electors of a subdivision voting at any election regularly called and held therein for the purpose or purposes hereinafter named, the said subdivision may levy taxes serially outside the limitation imposed by article XI, section 11 of the constitution of the state of Oregon, over such period of time as is authorized by the electors but in any event for not more than 10 years. * * *
"Section 3. The said funds may be so obtained for the purpose of financing the cost of any project, property or equipment which a subdivision has lawful power to construct or to acquire, * * *.
"Section 4. 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; * * *. The order, resolution, * * * 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. * * * " (Emphasis supplied)
It is to be noted that the statutory authority for holding an election under chapter 453, Oregon Laws 1945, specifically requires that it be held "in the same manner and at the same times" as elections provided for under § 100-1610, O. C. L. A., and related code sections, and that § 110-1104, O. C. L. A., as amended, referred to by you, is not applicable.
However, the legislative mandate clearly is that the order or resolution of the county court calling the election "shall set forth the purpose for which the funds" are to be provided by the levy, "the estimated total outlay for said purpose", "the period", and "the question of whether or not the proposed taxes are outside the limitation imposed by article XI, section 11 of the constitution". This language is plain and unambiguous and needs no interpretation in order to determine whether an election held pursuant to its provisions would be valid where the order or resolution calling such election did not state the necessity or purpose of the levy. For, as held by our supreme court in the recent case of School District No. 1, Multnomah County, v. Gleason, 178 Or. 577, 579, involving a proposal for a special tax levy:
" * * * there is no inherent reserved power in the people to hold an election and that to be legal and effective an election must be conducted in accordance with and pursuant to a valid statute authorizing it. * * * [citing Oregon cases]"
It follows, therefore, and it is my opinion, that the necessity or purpose for the tax must be set forth in the order or resolution of the county court calling such election, otherwise a levy made pursuant to an authorization by the electorate would be invalid.