Oregon Advisory Opinions March 07, 1956: OAG 56-11 (March 7, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-11.

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Your letter of February 11, 1956, reads in part as follows:

"The Green Sanitary District was ORGAnized in Douglas County in August of 1955 pursuant to the provisions of Chap. 450 ORS. Subsequently, a petition was filed for dissolution of the sanitary district and an election was held on that question November 22, 1955, at which time the voters voted not to dissolve the district. Within two weeks after that election a second petition for dissolution was filed. On February 2, 1956, a second election was held and the voters again declined to dissolve the district, this time by a one-vote majority. It is now apparent that another petition for dissolution will be filed and another election within the district will be required at an early date. The petitions requiring vote for dissolution have been filed under the provisions of 450.230 ORS. The Sanitary District as such has absolutely no funds derived from tax money at this time. People in favor of the district have raised a small amount of money which was to be devoted to the ORGAnization of the District and to paying the costs of publication and other incidental expenses but they are unwilling to use this money for costs of elections on the question of dissolution."

You request the opinion of this office on the following questions:

"(1) Is there any limitation as to the number of elections for dissolution that may be required upon petition of 15% of the registered voters of the District as provided by 450.230 ORS; and,

"(2) If your answer to the first question is in the affirmative is there any provision whereby the petitioners for such election can be required to make a deposit to defray the costs of such election?"

ORS 450.230, a part of the sanitary district law, provides in part that,

"(1) A district may be dissolved upon a majority vote of its registered voters voting at an election called by the district board.

"(2) The board may, upon its own initiative, and must, upon a petition of 15 percent of the registered voters of the district, call an election for the purpose of dissolution. If the election is initiated by petition, it must be held within 60 days of receipt of petitions by the board." (Emphasis supplied)

An examination of ORS chapter 450, pertaining to sanitary districts, reveals that the petition for the formation of a district must be accompanied by a bond

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to pay the cost of attempted formation (ORS 450.005); and the procedure for annexing territory to a district requires that the petition be likewise accompanied by the bond in the sum of not less than $100 to cover costs of the election in the event the annexation is ineffective (ORS 450.205). Nevertheless, there is no provision in ORS 450.230 providing the procedure for dissolution of a district, which requires the petitioners to submit a bond to cover the costs of the election, nor is there any provision placing a restriction as to how often a petition and an election for dissolution may be held.

It is not uncommon for the legislature to provide a limit on the number of elections that may be held within a particular municipality for a stated purpose. Compare Opinions of the Attorney General, 1924-1926, p. 171, and 1932-1934, p. 325, where under certain statutes the number of elections are limited. However, in absence of such a provision, where the particular statute makes it mandatory for an administrative board to call an election, it would appear that the said board would have no legal authority to refuse to call the election upon a proper petition presented to it. In 29 C.J.S., § 70, p. 93, it is said:

"Upon the presentation of a proper petition, where the statute makes that a condition precedent * * * the authorities appointed to call an election on particular measures or propositions have no discretion to refuse to call it. * * * "

The language in ORS 450.230 to the effect that the board "must, upon a petition of 15 percent of the registered voters of the district, call an election" admits of no construction other than that the calling of the election is mandatory.

Also, it further appears that lack of available funds by the district would not constitute a legal basis for the board to refuse to call the election if proper petitions are presented to it. On the latter point, the case of State v. Stannard, 84 Or. 450, is enlightening. In that case the legislature had called a special election to be held throughout the state and the defendant county clerk refused to issue the notices calling such an election on the ground that the budget of the county made no provision for the expenses of such elections. The Oregon Supreme Court, in passing upon the question of the use of county money for holding a special election when no provision was made therefor in the budget, uses this language:

" * * * The act of 1917 directing that a special election be held also carries with it an implied command that the several counties of the State pay the expenses of such election; and therefore the restrictions imposed by the earlier statute of 1913 are removed to whatever extent it may be necessary to release the County from that statute in order to permit compliance with the later statute of 1917." (Emphasis supplied)

The court further held that any indebtedness contracted by the county in holding the special election would be an involuntary indebtedness, and that it was incumbent upon the county to give precedence to the involuntary indebtedness over and above other county expenses. The Stannard case was followed in State ex rel. v. North Bend, 171 Or. 329, 344; Opinions of the Attorney General, 1936-1938, pp. 9, 316, the latter opinion holding that when a petition for an election under a statute is filed with the county court it is mandatory upon the court to call such election.

In response to your first question, it is my opinion that there is no limitation as to the number of elections for dissolution that may be held upon proper petition presented to the board for dissolution as provided by ORS 450.230.

Turning to your second inquiry, we have previously noted that there is no provision in ORS 450.230 requiring the petitioners to present a bond or make a deposit to pay or defray the costs of the election for dissolution. In absence of any such provision the election costs must be borne by the district. As stated by the court in Mackenzie v. Douglas County, 81 Or. 442, 444:

" * * * Where a state by enactment, in furtherance of its governmental purposes, imposes an obligation upon a county not in conflict with the Constitution of the state, that obligation becomes one which the county must fairly meet: Grant County vs. Lake County, 17 Or. 453, 458 * * *."

The same principle is applicable where the legislature has imposed election costs upon a sanitary district. Accordingly, it is our opinion that your second inquiry must be answered in the negative.