Oregon Advisory Opinions August 08, 1961: OAG 61-113 (August 8, 1961)
Collection: Oregon Attorney General Opinions
Docket: OAG 61-113
Date: Aug. 8, 1961
Advisory Opinion Text
OAG 61-113.
State Representative
Honorable Ken Maher
State Representative
You have asked almost identical questions involving the authority of the people to initiate a measure on the issue of daylight saving time to be referred to the electorate at the coming primary election next May without legislative authorization. You also ask, in substance, as to the power of the people to propose a measure that would conflict with the present referendum on daylight saving time.
It should be pointed out at the beginning that the specific questions raised by you have never been directly passed upon by our Supreme Court or by this office.
In analyzing the problem we turn first to Article IV, § 1, Oregon Constitution. In so far as applicable to your problem, Article IV, § 1, provides as follows:
"The legislative authority of the state shall be vested in the Legislative Assembly, consisting of a Senate and a House of Representatives, but the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly, and also reserve the power at their own option to approve or reject at the polls any Act of the Legislative Assembly. The first power reserved by the people is the initiative, and not more than eight percent of the legal voters of the state shall be required to propose any measure by such petition * * *. Initiative petitions shall be filed with the Secretary of State not less than four months before the election at which they are to be voted upon. The second power is the referendum, and it may be ordered (except as to laws necessary for the immediate preservation of the public peace, health, or safety), either by petition signed by five percent of the legal voters, or by the Legislative Assembly, as other bills are enacted. * * * All elections on measures referred to the people of the state shall be had at the biennial regular general elections, except when the Legislative Assembly shall order a special election . * * * Petitions and orders for the initiative and for the referendum shall be filed with the Secretary of State, and in submitting the same to the people he, and all other officers, shall be guided by the general laws and the Act submitting this amendment, until legislation shall be especially provided therefor." (Emphasis supplied)
Implicit in your question is the interpretation to be placed upon the above italicized language of § 1, Article IV, particularly the words "biennial regular general elections." In other words, does the term "biennial regular general elections" have a meaning that would encompass the language "general primary election" as designated in ORS 249.340 and as classified by the Supreme Court?
ORS 249.340 provides:
"On the third Friday in May 1954, and biennially thereafter, there shall be held in the several election precincts of the state a general primary election at which shall be nominated or elected such United States, state, district, county, city, town and precinct officers as are to be elected or nominated at the general primary election or general election of that year." (Emphasis supplied)
Construing this section prior to enactment of the Oregon Revised Statutes the Supreme Court in Taylor v. Multnomah County, (1926) 119 Or. 123, 125, 248 P. 167, said:
"A primary nominating election in Oregon is a general election. It is so designated by statute: * * *"
Reaching the same result see Hansen v. Malheur County, (1939) 160 Or. 579, 582, 86 P. (2d) 964. See also Henderson v. City of Salem, (1931) 137 Or. 541, 1 P. (2d) 128, 4 P. (2d) 321; Attorney General ex rel. Reuter v. City of Bay City, (1952) 334 Mich. 514, 54 N.W. (2d) 635; County of Alameda v. Sweeney, (1957) 151 Cal. App. (2d) 505, 312 P. (2d) 419.
Our Supreme Court in State ex rel. Stone v. Andresen, (1924) 110 Or. 1, 7, 222 P. 585, defined a regular election as follows:
"A regular election is an election recurring at stated times, fixed by law; while a special election is one arising from some urgency outside the usual routine. * * *"
The primary election meets the requirements of § 1, Article IV, unless the word "primary" is the controlling factor. If such be the case we are then forced into the position, as stated in Henderson v. City of Salem, supra, that the primary election is a special election called for a "specified particular purpose."
It is noteworthy at this point to give further consideration to the language of § 1, Article IV, "All elections on measures referred to the people of the state shall be had at the biennial regular general elections." As a practical matter the words of this sentence fall within the meaning of the language used in ORS 294.340, particularly since the enactment of the nonpartisan law allowing all registered electors to vote at the primary election. ORS 252.050, 252.270, 252.510. Significance could be given to the fact that the people in adopting § 1, Article IV, in designating the "biennial regular general elections" used the plural rather than the singular form of the word "election." Consistent usage of the term "general election" in the Constitution has not been followed. See Articles I, § 39 (1); II, §§ 14, 14a; IV, §§ 6 (4)(c) and (5); V, §§ 8, 16; VI, § 6; XI, § 11 (2); XIV § 3; and XVII, § 1.
Applying the rule laid down in State ex rel. v. Hoss, (1933) 143 Or. 383, 389, 22 P. (2d) 883, that
"Election laws should be liberally construed to the end that the people may have the opportunity of expressing opinion concerning matters of vital interest to their welfare. Expression, not suppression, tends towards good government. The great constitutional privilege of a citizen to exercise his sovereign right to vote should not be taken away by narrow or technical construction. * * *"
it would not be difficult to reach the conclusion that the primary election met the conditions of § 1, Article IV, supra, as being a biennial regular general election. See Bethune v. Funk, (1917) 85 Or. 246, 166 P. 931, where the court held the term "special election" as used in § 1, Article IV, to mean a general election where more than one measure was submitted to the people.
Our problem does not end here. ORS 254.090 (1) in part provides:
"The Secretary of State, at the time he furnishes to the county clerks certified copies of the names of candidates for state and district offices, shall furnish to each county clerk his certified copy of the ballot titles and numbers of the measures to be voted upon at the ensuing general election. * * *"
It is clear that the legislative intention drawn from the language of this statute presupposes the nomination of the respective candidates for the several offices. It is to be concluded from the conditions imposed by ORS 254.090 that the "ensuing general election" means none other than the election provided for in § 14, Article II, of the Constitution, that is, the regular general biennial election held on the first Tuesday after the first Monday in November.
The above result squares off with the language of Justice Campbell in Kneeland v. Multnomah County, (1932) 139 Or. 356, 359, 360, 10 P. (2d) 342, where the court had under consideration a measure to increase the tax levy to be submitted to the people at the primary election while the general statute provided that the election would be held on the first Tuesday following the first Monday in November. It was there said:
"It will be observed that where the constitution does not fix the time and manner of holding elections, Art. IV, § 1, concedes the power to the legislative assembly to make the necessary provision therefor. So they provided in said Art. 4, § 1, that all measures referred to the people should 'be submitted at the general biennial elections, except when the legislative assembly shall order a special election.' Thus putting beyond the power of the legislature to defer the time beyond the next general election.
"* * * There is nothing in the statute nor in the constitution authorizing the county commissioners to call a special election for this purpose, at any other time than on the first Tuesday after the first Monday of November of any year. * * *"
There are a number of cases that have been before the Supreme Court on the question of holding a special election concurrently with a general primary election, but we find no case squarely meeting the issue of whether or not the primary election as designated by statute and defined by the court falls within the operating force of the language "biennial regular general elections" as used in § 1, Article IV, Oregon Constitution. See Hansen v. Malheur County, supra; Taylor v. Multnomah County, (1926) 119 Or. 123, 248 P. 167; Norton v. Coos County et al., (1925) 113 Or. 618, 233 P. 864. But cf. Henderson v. City of Salem, (1931) 137 Or. 541, 1 P. (2d) 128, 4 P. (2d) 321.
It is a well settled rule that uniform legislative construction of the Constitution and statutes has great weight. 2 Sutherland, Statutory Construction, 3d ed., p. 523ff., § 5109.
Weight must therefore be given to the practice of the Legislative Assembly in referring measures to the people at a primary election in providing for a special election to be held concurrently with the primary election. See chapter 35, General Laws of Oregon 1920 (special session); chapter 90, Oregon Laws 1933 (special session).
Likewise the long-continued practical construction of constitutions and statutes by the department or officer whose duty it is to carry it into execution is en
titled to great weight and will not be disregarded or overturned, except for cogent reasons and unless it is clear that such construction is erroneous. Kelsey v. Norblad, (1931) 136 Or. 76, 79, 298 P. 199; Opinions of the Attorney General, 1936-1938, pp. 585, 587; 2 Sutherland, Statutory Construction, 3d ed., p. 512ff., § 5103.
It is significant that the Secretary of State's office for more than 40 years has interpreted Article IV, § 1, as requiring that all measures referred to the people by initiative petition be confined to the November general election ballot, and has consistently refused to accept initiative petitions from sponsors who have sought to have the measure referred to the voters at a primary election.
As stated in State ex rel. Everding v. Simon, (1891) 20 Or. 365, 26 P. 170:
"* * * An election in order to be valid must be held in pursuance of the provisions of some law authorizing it, in force at the time. There is no inherent reserved power in the people to hold an election. [citing cases]" (Quoted with approval in State ex rel. Swan v. Kozer, (1925) 115 Or. 638, 239 P. 805; State ex rel. Bylander v. Hoss, (1933) 143 Or. 383, 22 P. (2d) 883.)
Unless and until the Supreme Court overturns the "long-continued practical construction" placed on § 1, Article IV, by the Legislative Assembly and the Secretary of State's office, it is my opinion that initiative measures referred to the people are to be voted upon at the next regular biennial general election to be held on the first Tuesday following the first Monday in November, unless specially authorized for a different date by the Legislative Assembly. Your first question is answered in the negative.
The second question presented concerns the right of the people to exercise their initiative power when there is a measure which has already been ordered referred to a vote of the people and which deals with the same subject matter.
The initiative power granted to the people in § 1, Article IV, is in the following words:
"* * * the people reserve to themselves power to propose laws and amendments to the Constitution and to enact or reject the same at the polls, independent of the Legislative Assembly * * *."
This power is plenary except in so far as it is limited by the Constitution or conflicts with one of the powers delegated to the Federal Government under the Constitution of the United States. As to the limitations of the Oregon Constitution, this proposition is stated in Equi v. Olcott, (1913) 66 Or. 213, 216, 133 P. 775, in the following language:
"* * * under the sanction of the initiative and referendum system the people have a right to legislate independent of the legislative assembly, except as they themselves by their own Constitution have set metes and bounds upon this reserved power. * * *"
It is a known fact that on occasion bills dealing with the same subject matter are concurrently before the Legislative Assembly. No question has been raised as to the validity of such practice nor do we know of any constitutional provision restricting such practice. It is logical to assume that the Senate or the House under its rule-making power, § 10, Article IV, Oregon Constitution, could prohibit such practice, but such rules would not be binding upon the people in the exercise of the initiative power. In fact the legislature has recognized the possibility of just such a condition arising and has provided a procedure for determining effectiveness of two conflicting measures passed by the people at the same election. ORS 254.110.
It is my opinion that the people in the exercise of the power of initiative may legislate, within constitutional limits, in the same manner and to the same extent as the Legislative Assembly, without executive interference. Your second question is answered in the affirmative subject, of course, to the limitation set forth in our answer to your first query.