Oregon Advisory Opinions March 19, 1953: OAG 53-31 (March 19, 1953)
Collection: Oregon Attorney General Opinions
Docket: OAG 53-31
Date: March 19, 1953
Advisory Opinion Text
OAG 53-31.
State Representative
Pursuant to your oral request my opinion is herewith submitted on the constitutionality of S. B. No. 40 in so far as such bill purports to subdivide certain representative districts for the purpose of electing representatives to the legislative assembly.
Section 6, Article IV, Oregon Constitution, as amended at the election November 4, 1952, apportioned the state into certain representative and senatorial districts. The word "district" in §§ 3, 6, 7 and 8 of Article IV must necessarily be construed to mean the same thing in each section.
It has been suggested that § 7 of Article IV, which provides that
"A senatorial district, when more than one county shall constitute the same, shall be composed of contiguous counties, and no county shall be divided in creating senatorial districts",
by implication, permits the subdividing of a county in creating representative districts. However, S. B. No. 40 does not reapportion the state into new "districts" by subdividing Multnomah, Marion and Lane counties, but rather adopts the meaning of the word "district" as provided in the above referred to sections of Article IV and purports to subdivide certain districts.
Section 3, Article IV, provides:
"The senators and representatives shall be chosen by the electors of the respective counties or districts into which the state may from time to time be divided by law. If a vacancy in the office of senator or representative from any county or district shall occur,
such vacancy shall be filled as may be provided by law." (Emphasis supplied)
It is apparent that § 3 requires senators and representatives to be elected by all of the electors of the county or district that they represent. The plan contained in S. B. No. 40 for subdividing Multnomah, Marion and Lane counties into subdistricts and providing that the voters residing in a particular subdistrict shall vote for a lesser number of representatives than the entire number alloted to each county, would clearly be an unpermissible departure from the requirement of § 3, Article IV, Oregon Constitution. State ex rel. Morris v. Wrightson, (1893) 56 N.J.L. 126, 28 A. 56, 22 L.R.A. 548.
You also ask if the legislature may constitutionally provide for the numbering of positions of representatives and senators within each county or district.
"* * * In deciding this question, it must be borne in mind that the constitution of this state, as applied to the legislative department, is a limitation and not a grant of power and that, unless restrained by some constitutional provision of the state or federal constitution, the power of the legislative department to enact laws in respect to matters of this character is unlimited, and that, since no federal question is involved in this case, we must look to the state constitution alone in determining the power of the legislature to enact the law in question." (Emphasis supplied) Loe v. Britting, (1930) 132 Or. 572, 574.
Section 8, Article II, of the Constitution, provides:
"The legislative assembly shall enact laws to support the privilege of free suffrage, prescribing the manner of regulating and conducting elections, and prohibiting, under adequate penalties, all undue influence therein from power, bribery, tumult, and other improper conduct."
The legislature's general power of regulation of elections recognized in the above section imposes no limitation on the power of that body to provide for the numbering of positions of representatives and senators within each county or district. The same is true of § 16, Article II, Oregon Constitution.
The numbering of positions for the election of supreme court judges, who are elected on a state-wide basis, and of circuit court judges in certain judicial districts is provided for and the constitutionality of these acts has gone unchallenged. Similar legislation has been sustained in McKesson v. Donaghue, (1944) 23 Cal. (2d) 821, 147 P. (2d) 377.
However, § 23 (13), Article IV, does provide a limitation on such a proposal in that no "special or local" law may be enacted providing for the conduct of election for state officers. Ladd v. Holmes, (1901) 40 Or. 167.
While the legislature may not provide that representative and senatorial districts created by the last apportionment and having more than a certain number of representatives or senators shall elect the same by numbered positions (because this would be special or local legislation inasmuch as such districts would be identifiable from the face of the bill and limited to those districts presently meeting this description), the legislature may provide in effect that in all legislative districts now or hereafter created having more than a certain number of representatives or senators, the same shall be elected from numbered positions. Ladd v. Holmes, supra.