Oregon Advisory Opinions April 13, 1967: OAG 67-65 (April 13, 1967)
Collection: Oregon Attorney General Opinions
Docket: OAG 67-65
Date: April 13, 1967
Advisory Opinion Text
OAG 67-65.
A statement of contribution and expenditure is not required by ORS 260.067 in the case of committees or individuals engaged in a campaign for the success or defeat of a ballot proposal other than one originating in the exercise of the constitutional power of the initiative or referendum.
State Representative
You ask
"* * * whether or not a statement of contribution and expenditures is required by ORS 260.067 of committees or individuals engaged in campaign for the creation of a community college at an election scheduled in May of 1967."
ORS 260.067 provides:
"The following are required to file statements of contributions and expenditures:
"(1) All political committees, associations, organizations, aggregate bodies of individuals, whether incorporated or not, the duration of which is continuous from year to year, or any newly formed political organization whose purpose is to aid in the support of or the defeat of candidates or whose purpose is to support or defeat measures.
"(2) Individuals expending money or items of value in excess of $50 in the aggregate for the support of or in opposition to candidates, measures or committees." (Emphasis supplied)
We presume you are referring to a campaign for the formation of an area education district by vote of the people in the proposed district, as provided in ORS chapter 341. Such a district is formed for the purpose of operating a community college.
The answer to your question therefore depends upon whether or not a ballot proposal to establish such a district constitutes a "measure" as used in ORS 260.067.
A reading of the cases cited under "Measure" in 26A Words and Phrases 569-573, does not prove instructive for our purposes here. McFarlan v. City of Norwood, (1916) 26 Ohio Dec. 344, 19 Ohio N.P. (N.S.) 145, is cited as defining "measure" to include "any course of action proposed or adopted by a government," but that decision was reversed on appeal (McFarlan v. City of Norwood, (1916) 26 Ohio C.C. (N.S.) 33, 28 Ohio Cir. 323). This broad definition was, however, later adopted in Bierhorst et al. v. Prieto, (C.A. 1st, 1961) 131 So. (2d) 308, where it was held that "measure" included a town council's resolution to appoint a town attorney, so as to make such a resolution subject to a mayor's veto.
Generally, though, the word "measure" is used in connection with the initiative and referendum. See Palmer v. Benson, (1907) 50 Or. 277, 91 P. 577; State ex rel. Bylander v. Hoss, (1933) 143 Or. 383, 22 P. (2d) 883; Nickerson v. Mecklem et al., (1942) 169 Or. 270, 126 P. (2d) 1095.
ORS 260.067 quoted above was one of several statutes enacted in 1965 in lieu of former ORS 260.070, which latter statute provided in part:
"(3) Any person not a candidate for any office or nomination who expends or contributes money or value to an amount greater than $50 in any campaign for nomination or election, to aid in the election or defeat of any candidate or candidates, or party ticket, and any person who expends or contributes money or value to an amount greater than $50 in any campaign for the approval or rejection of any measure or measures or proposal or proposals before the people of the state or any county, district, subdivision or municipality thereof, shall, within 10 days after the election in which such money or value was expended or contributed, file an itemized statement * * *.
"(4) Every association, organization and aggregate body of individuals, whether incorporated or not, the duration of which is continuous from year to year and which has a regular or continuous income and which makes any expenditures or contributions for such purposes, shall, through its proper officer or representative, file such statement of expenditures and contributions which it makes for such purposes * * *." (Emphasis supplied)
Prior to 1939, the words "or measure before the people" appeared in place of the language above emphasized in former ORS 260.070.
In 1938 this office was asked whether that statute (then § 36-2412, Oregon Code 1930) included contributions of money and expenditures incurred in a campaign for or against the formation of a people's utility district, and we said in Opinions of the Attorney General, 1936-1938, pp. 618, 619:
"As to whether these provisions include an election for the creation, etc., of a people's utility district depends upon whether such question is a 'measure' as provided for in the statute above quoted.
"Clearly, therefore, the word 'measure' as used in the constitution and to which the corrupt practices act referred, portions of which are above quoted, are proposed laws and amendments to the constitution, and do not include the question of whether or not a law already enacted, such as the people's utility district law, shall be put in operation in a given portion of the state. Such question does not propose or involve the enactment of any law or any amendment of the state constitution."
After the 1939 amendment (chapter 47, § 1, Oregon Laws 1939), we were asked whether the statute in its broader form would include such contributions and expenditures regarding a proposed
formation of a people's utility district. In Opinions of the Attorney General, 1938-1940, p. 365, we said:
"It is noticed the provisions of said section 36-2412, as amended, apply to 'the approval or rejection of any measure or measures or proposal or proposals before the people of the state or any county, district, subdivision or municipality thereof', and which, in my opinion, include expenditures incurred in a campaign for or against the formation of a peoples utility district. The proposed formation of such a district by vote of the people of such proposed district, pursuant to the provisions of the statute authorizing the same, is quite obviously a 'proposal' submitted to the vote of the people of such district."
It is possible to quarrel with the limited meaning indicated for the term "law" in the earlier opinion of this office cited, but support for this interpretation may be found in State v. Kline, (1907) 50 Or. 426, 93 P. 237. In any event, a proposal for formation of a people's utility district and a proposal for formation of an area education district are unquestionably similar in their legal nature.
The elimination in 1965 of any reference to "proposals" cannot, in light of this legislative background, be considered insignificant:
"In 2 Sutherland, Statutory Construction (3d ed.) 535, § 5201, it is said: '* * * if words used in a prior statute to express a certain meaning are omitted, in construing words claimed to have the same meaning it will be presumed that a change of meaning was intended.' * * *" Swift & Co. and Armour & Co. v. Peterson, (1951) 192 Or. 97, 125, 233 P. (2d) 216.
Violation of ORS 260.067 may subject the violator to criminal penalties, and the terms of the statute must therefore be capable of reasonably certain definition. As the United States Supreme Court has said:
"* * * Legislation may run afoul of the Due Process Clause because it fails to give adequate guidance to those who would be law-abiding, to advise defendants of the nature of the offense with which they are charged, or to guide courts in trying those who are accused." Musser et al. v. State of Utah, (1948) 333 U.S. 95, 92 L.Ed. 562, 565.
In the context of the legislative history of ORS 260.067 and its statutory predecessor, the term "measure" has acquired a definite meaning, being limited to ballot propositions originating from the initiative or referendum.
We therefore conclude that the requirements of ORS 260.067 would not apply to committees or individuals engaged in a campaign for the creation of a community college.