Oregon Advisory Opinions March 23, 1962: OAG 62-32 (March 23, 1962)

Oregon Attorney General Opinions

1962.

OAG 62-32.

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384

You request an opinion as to whether ORS 609.040 authorizes a leash law to be presented to the voters of Clackamas County upon the petition of 100 legal voters; whether a voters' pamphlet is necessary under ORS chapter 254; and, finally, you inquire as to the effect of the passage of the leash law on municipal leash laws.

ORS 609.040 provides as follows:

"(1) When the petition of 100 or more legal voters of any county is filed with the county clerk 45 days before the general or special election in any year, the county clerk shall cause notice to be given that at such election a vote will be taken for and against permitting dogs to run at large in the county."

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385

ORS 609.050 provides:

"In voting for and against dogs running at large, there shall be printed or written on the same ballot with the candidates for county offices the following: 'For dogs running at large---Yes.' 'For dogs running at large---No.' The votes thus cast shall be canvassed the same as those cast for any county or city officer."

ORS 609.060 provides in part:

"(1) If a majority of all votes cast in the election provided for by ORS 609.040, is against permitting dogs to run at large, the county clerk shall give notice, by publication in some newspaper having a general circulation in the county, and in the election precinct if the election for dogs running at large affects any one precinct only, for three consecutive weeks."

It is evident that ORS 609.040 (1) requires the county clerk to give notice of an election on a leash law when "the petition of 100 or more legal voters" is filed. Further, ORS 609.050 makes provision for the ballots and the canvassing thereof, while ORS 609.060 provides for publication of the election results.

It follows that, upon petition of 100 legal voters, ORS 609.040 authorizes the matter of a leash law to be submitted at an election to the voters of Clackamas County.

As to whether a voters' pamphlet is required in connection with an election on the matter of a leash law, ORS 609.040, supra, merely requires that "the county clerk shall cause notice to be given that at such election a vote will be taken for and against permitting dogs to run at large in the county."

This statute makes no express provision for a voters' pamphlet.

ORS 254.310 to 254.340, in prescribing what material shall appear in a voters' pamphlet published by a county, restrict the material to county initiative and referendum matters. However, an election under ORS 609.040 does not involve the power of the people of a county to enact law but merely has the effect of making the law passed by the legislature effective in a particular county. Fouts v. Hood River, (1905) 46 Or. 492, 81 P. 370; State v. Kline, (1907) 50 Or. 426, 93 P. 237.

The result is that a voters' pamphlet is not required in connection with an election under ORS 609.040.

In response to the question of the effect of voter approval of the leash law on municipal ordinances, ORS 609.040 (1) expressly provides that the law will be operative throughout the county. The issue is whether voter approval of ORS 609.040 voids the municipal leash laws in existence in the various cities of the county.

The interest of the state versus the city in dog control matters has already been considered in this state. In Hofer v. Carson et al., (1922) 102 Or. 545, 203 P. 323, the argument was advanced that the matter of licensing and the control of dogs kept in cities was a matter of purely municipal concern and that chapter 186, General Laws of Oregon 1919, now ORS chapter 609, was void. The court responded at page 548, as follows:

"* * * The matter of licensing dogs is of as much concern to the people throughout the state at large as it is to the people in any particular locality or community within the state. The keeping of dogs is not confined to cities and towns, but is coextensive with the boundaries of the state. The necessity of regulating the manner in which dogs shall be kept and controlled is as urgent without, as it is within the limits of cities and towns, as their proclivity to do mischief is as pronounced in one instance as the other. It is not, therefore, a matter of local concern, but it is one of equal concern to all of the people throughout the state."

It is axiomatic that a statute of general application supersedes the provision of an ordinance in conflict with it. Burton v. Gibbons, (1934) 148 Or. 370, 36 P. (2d) 786. It is likewise true that, generally, an ordinance dealing with the same subject matter as a statute is not invalid except in the case of a conflict. R. A. Miller v. P. J. Hansen, (1928) 126 Or. 297, 269 P. 864; Garry Harlow v. W. G. Clow, (1924) 110 Or. 257, 223 P. 541; Covey Drive Yourself and Garage v. City of Portland et al., (1937) 157 Or. 117, 70 P. (2d) 566. Therefore, in Opinions of the Attorney General, 1950-1952, p. 305, this office ruled that the enforcement of a city ordinance prohibiting the running at large of animals within city limits was not in conflict, but rather in harmony, with a statute pertaining to estrays.

It is our view that a municipal leash law, not in conflict with the state law, is valid.

It is to be noted that in the absence of a particular municipal ordinance, we are not in a position to express an opinion concerning the legality of any particular ordinance but can merely express the general rules of law.

Accordingly, it is our opinion that ORS 609.040 authorizes the leash law to be presented to the voters of Clackamas County upon the petition of 100 legal voters, that a voters' pamphlet is not necessary, and that municipal leash laws are valid in the absence of a conflict with statutes governing the control of dogs.