Oregon Advisory Opinions April 14, 1955: OAG 55-40 (April 14, 1955)

OAG 55-40.

In your letter of April 13, 1955, you inquire whether you can constitutionally amend House Bill No. 498 to limit the right of persons petitioning for or remonstrating against the enactment of county zoning ordinances, to certain percentages of "the record owners of real property and of the holders of duly recorded contracts of purchase of real property." We assume that your question as to the constitutionality of such a provision arises from the limitation of such right to property owners as distinguished from legal voters.

The legislature has power to prescribe the number and qualifications of persons signing petitions provided, of course, such requirements are in harmony with the Constitution. It is frequently required that petitioners be residents, freeholders or landowners. See 30 Am. Jur., Irrigation, § 80; 18 Am. Jur., Elections, § 104.

Where an actual election is concerned the right of persons to cast their vote is governed by the provisions of Article II, § 2, Oregon Constitution, and the rights of voters cannot otherwise be qualified by requiring them to be freeholders. See opinions of the Attorney General No. 2361 and No. 2403.

The signing of a petition is not "an exercise of the electoral franchise, and the constitutional right to vote is not involved." Wiley v. Reasoner, 69 Or. 103, 114.

In the case of Roesch v. Henry, 54 Or. 230, 235, it was said:

"* * * The privilege of signing a petition, to initiate a local option election, is not a right of franchise in which all electors enumerated in the ORGAnic law (Section 2, Article II, Constitution of Oregon) can participate.

"* * * As only 10 per cent of the registered voters are necessary to cause a local option measure to be submitted for ratification or rejection, the signing of a petition for that purpose is not the expression of a choice in favor of, or opposed to, prohibiting the sale of intoxicating liquors; and hence the appending of signatures to the petition is not an election. This being so, the qualifications of the petitioners may be limited and restricted in such manner as may be prescribed. * * *"

Accordingly, it appears that the right of persons to sign petitions for or in remonstrance against enactment of zoning ordinances may be qualified by requiring them to be owners of real property as prescribed by statute.

We wish to direct your attention to the fact, however, that the language of the proposed amendment is ambiguous and may give rise to many questions. Clarification of the language is therefore desirable.