Oregon Advisory Opinions July 29, 1960: OAG 60-91 (July 29, 1960)
Collection: Oregon Attorney General Opinions
Docket: OAG 60-91
Date: July 29, 1960
Advisory Opinion Text
OAG 60-91.
Secretary of State
You have requested an opinion concerning questions arising with respect to establishment of a district court in Curry County under the provisions of ORS 46.025(1) (c), as amended by chapter 559, § 3, Oregon Laws 1959. This subsection provides for the creation of a district court in cities which are county seats of counties having a population of 13,000 or more and less than 16,000. The basis for determination of the necessary population is prescribed by the statute as follows:
"The latest federal decennial census shall be used in determining the population of cities and counties under this subsection."
In substance your questions are:
(1) Does the language "latest federal decennial census" mean the current 1960 census or the census as it existed at the time of the 1959 amendment of ORS 46.025?
(2) If the 1960 census is to be used, may preliminary population figures be used in determining the population? If so, may the preliminary figures issued by the Regional Office of the Bureau of Census be accepted or must such figures be certified by the Bureau of Census in Washington, D. C.?
(3) If the 1960 census may be used, is the request of the district attorney to have the office of district judge certified for election in order and may the Secretary of State in response to such request certify the position to the county clerk for inclusion on the November ballot?
(4) Who initiates the request for the establishment of a new district court and what state or county office must study the census figures to determine whether or not a court is to be established as provided for in ORS 46.025?
As to your first question, while there is some authority in the older cases to the effect that the "last federal census" means only the particular census which existed at the time of the enactment of the law in question, State ex rel. v. Swigert, (1911) 59 Or. 132, 116 P. 440, it is now well settled that such a statute using census figures as a basis of classification is intended to have a prospective and progressive application and is not to be confined to the census existing at the time of the enactment of the statute. 15 Am. & Eng. Cas. 858; Ladd v.
Holmes, (1901) 40 Or. 167, 66 P. 714; Tichner v. Portland, (1921) 101 Or. 294, 299, 200 P. 466; City of Pendleton v. Umatilla County, (1926) 117 Or. 140, 241 P. 979; State ex rel. Hyland v. Baumhauer, (1943) 244 Ala. 71, 12 So. (2d) 342. The "latest federal decennial census" to be used in determining whether or not a county has attained a population entitling it to a district court would be the current 1960 census.
As to your second question, there is a variety of judicial opinion as to at what stage a census enumeration may be accepted as a basis for classification. 12 Am. Jur., Constitutional Law (1960 Cum. Supp.), § 489; Annotation, 43 A.L.R. (2d) 1353.
Perhaps the best reasoned case on the Subject is Detroit v. Nims, Comm'r. of Revenue, (1951) 330 Mich. 239, 47 N.W. (2d) 4. The Nims case analyzes the varying results reached by courts and points out that no rule of thumb definition of the term "last federal census" can be adopted but that the controlling factor in every case is the legislative intent and the purpose to be accomplished by the statute using the population figures as the basis of classification. The court noted the distinction between use of census figures for the purpose of establishing the jurisdiction of courts, drawing juries, appointment or election of public officials and the use of such figures for the purpose of distribution of state revenues and tax moneys to local units of government on a per capita basis, the latter being the question in the Nims case. Commenting on cases relating to courts, elections and like cases, the court said:
"It is not surprising that in the cited cases the courts, in determining the jurisdiction of courts, or the validity of the drawing of juries or of the appointment or election of public officials, have rejected the date of enumeration as the time as of which the statutory effects of a changed population status shall become operative and, instead, have accepted for that purpose some subsequent date when census results were published or became known, inasmuch as to do otherwise would result in the creation of a period of chaos and confusion, between those 2 dates, during which the jurisdiction of courts and the validity of proceedings and of official acts would be in doubt, incapable of immediate ascertainment. Such result, destructive of the orderly processes and functioning of government, could not have been the legislative intent in the enactment of the statutes under consideration in those cases. * * *" (p. 247)
Though recognizing the lack of uniformity of decision, the Oregon Attorney General, in Opinions of the Attorney General, 1948-1950, p. 460, has taken the view that a county court may take official cognizance of the federal census as declared by a preliminary census report and an official public announcement thereof as the basis of determining the population of a county under a 1947 law relating to the establishment of a district court in counties having a population over 50,000 and less than 200,000. Reviewing a number of cases, the opinion states:
"* * * The evidence which the county court may validly consider to establish this fact is illustrated in the foregoing decisions. Unofficial newspaper publications alone probably would not be sufficient. See Barble v. White Cotton, (Mo.) 190 S.W. (2d) 244; Lewis v. Lackawanna County, (Pa.) 50 A. 162. However, the receipt of a preliminary census report issued by an official of the federal census bureau or an official public announcement thereof appears to be satisfactory evidence of the population of a county. See Opinions of the Attorney General, 1928-1930, p. 552."
While the Act considered in that opinion made no provision for determining the population on the basis of the "last" or "latest" federal census, a similar conclusion would appear to be justified where the Act, as here, does provide for determination according to the "latest federal decennial census."
Accordingly, preliminary census figures, whether released by the Regional Office of the Bureau of Census or the office at Washington, D.C. may be used in determining whether or not a county has entered the classification entitling it to a district court where such census bulletins and reports have been publicly filed, published and distributed and have become an official public announcement of the preliminary figures. Herndon v. Excise Board of Garfield County, (1931) 147 Okla. 126, 295 P. 223.
As to your third and fourth questions, the statute relating to district courts does not specify who shall make a request for certification of the position of district judge, who shall initiate the request for establishment of a new district court, or who shall study the census figures and make the determination that the county has become eligible for a district court.
In Opinions of the Attorney General, 1948-1950, p. 460, in passing upon chapter 589, Oregon Laws 1947, relating to district courts in counties having a population between 50,000 and 200,000 (referred to above), the opinion was expressed that the statute was selfexecuting and that the county court had only the duty of making the necessary modification of the justice of the peace district boundary changes. While ORS
51.660 continues the duty of the county court with respect to counties having a population between 50,000 and 200,000, ORS 46.020, no such provision is contained in the statutes as to other district courts established under the provisions of ORS 46.025. However, under the provisions of ORS 46.030, the territorial limits of such other district court judicial districts are made coextensive with county boundaries.
In the absence of any express provision in the statute, the determination whether the jurisdictional population figure has been reached appears to devolve upon the Secretary of State as a part of his official duties in certifying the statements to the county clerks showing the state and district offices to be filled in counties at elections, ORS 250.020, and in accepting filings of certificates of nominations and other papers, ORS 249.770, 246.021, including those related to district courts, Opinions of the Attorney General, 1958-1960, p. 329. See State v. Brooks, (1910) 58 Wash. 648, 109 P. 211, 212.
The letter from the district attorney may serve to bring to the attention of the Secretary of State that the requisite population figure has been reached, as may information from other sources. It is our opinion, however, that the latest federal decennial census officially released and promulgated by the Bureau of Census governs the determination of the Secretary of State as to whether the population figure designated by the statute has been reached in the performance of his duties.