Oregon Advisory Opinions October 02, 1958: OAG 58-147 (October 2, 1958)

OAG 58-147.

In your letter of September 12, 1958, you have asked whether the City of Bend will comply with the provisions of the Oregon Constitution, Article XI, § 11 (2), relating to the establishment of a new tax base, if it places the question before the voters through the use of a separate ballot to be handed to the voters at the polls at the time of the regular general election on November 4, 1958.

The provision in question reads, in part, as follows:

"(2) The question of establishing a tax base shall be submitted at a regular general or primary election. * * *"

November 4, 1958, will be the date of a regular general biennial election in Oregon. Constitution, Article II, § 14. It will also be a regular general election day for incorporated cities and towns in Oregon. Constitution, Article II, § 14a; Opinions of the Attorney General, 1952-1954, pp. 220, 226. ORS 310.410 provides that the question of establishing a new tax base (except in the case of a newly created tax district) "shall be submitted at the same time and place as a regular biennial state-wide general election or a regular biennial state-wide primary election." Other than this and Article XI, § 11, the Constitution and the statutes provide no rules or restrictions to guide the city authorities in submitting to the voters the question of establishing a tax base.

It is my opinion that the city will unquestionably meet the requirements of the time element.

The next question relates to the use of a separate ballot in submitting the question to the electors.

ORS 250.230 applies to cities with a population of 2,000 or over, and contains this language:

"* * * As far as practicable, the ballots used for state and county elections, as provided by law, shall be arranged to include the names of city officers and measures to be voted upon at city elections. * * *"

It is not practicable to use the state and county ballot in the present instance since the resolution to submit the question was made too late to incorporate the issue in that ballot. The quotation above from ORS 250.230 was considered in Opinions of the Attorney General, 1932-1934, p. 319, from which I quote:

"* * * if the city, pursuant to its charter provisions or ordinances, should submit such measures upon separate ballots, I see no reason why this method would not also be valid and would not in any way invalidate the election. This procedure is followed in some cities, and much depends upon the charter and ordinance provisions in any case."

ORS 221.410 reads in part as follows:

"Except as limited by express provision or necessary implication of general law, a city may take all action necessary or convenient for the government of its local affairs."

You have stated that the charter of the City of Bend includes the following:

"* * * 'There shall be a general city election held in the City of Bend upon the date and at the same time and places as the regular general election is held in Deschutes County, Oregon, for general state and county elections, at which election all elective officers provided for by this charter and all initiative, referendum, and other matters submitted by the commission of the City of Bend to the electors of said city at such election shall be voted upon, and the judges and clerks for such state and county elections shall be judges and clerks for such city elections.'"

In view of the powers given to the City of Bend, above enumerated, and the absence of directory or limiting statutory provisions relating to an election to