Oregon Advisory Opinions October 22, 1968: OAG 68-142 (October 22, 1968)

Oregon Attorney General Opinions

1968.

OAG 68-142.

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Attention: Mr. Jesse V. Fasold Deputy Superintendent

This will reply to your request for an opinion regarding the proposed one and one-half percent constitutional limitation. The amendment would limit the total amount of taxes that may be levied against real and personal property to one and one-half percent of the true cash value thereof. Subsection (3) of the proposed amendment provides:

"The limitation provided in subsection (1) of this section shall not apply to any tax levy when submitted by a taxing unit to the voters therein on the first Tuesday after the first Monday in November of any year and approved by a majority of the voters voting thereon which majority must also be not less than 20% of the registered voters entitled to vote thereon at said election."

You ask whether a school district levy, submitted to the voters of the district on November 5, 1968 (the first Tuesday following the first Monday in November), if approved by the majority required by said subsection (3), "would authorize the district to exceed the limitation of the proposed amendment in the event the latter becomes a part of the constitution."

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A basic question is the authority of the school district to submit a levy to the voters which would be outside of a constitutional limitation which would not yet be in effect. At the primary election in May 1968, a constitutional amendment to Article IV, § 1, Oregon Constitution, was approved by the people. Subsection (4)(d) of said § 1, reads:

"Notwithstanding section 1, Article XVII of this Constitution, an initiative or referendum measure becomes effective 30 days after the day on which it is enacted or approved by a majority of the votes cast thereon. * * * "

Excluding November 5, the date of the election, the thirtieth day after the election is December 5, which is the effective date of the proposed amendment, if it should pass.

ORS 310.360 provides the present authority for the submission of a tax levy by a school district over the amount limited by the Oregon Constitution. It states in subsection (1):

"Whenever it is necessary in the opinion of any district school board to increase the amount of the tax levy in the school district over the amount limited by the Oregon Constitution except on vote of the people, the district school board shall make a determination and certificate upon the question of increasing the tax levy and fixing the date of the election similar to the determination and certificate required by ORS 310.330." (Emphasis supplied)

It is obvious that at the time the school district board opines that an increase in the amount of the levy is necessary over the amount limited by the Oregon Constitution, the only constitutional limitation such school board could

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consider is the present six percent limitation of Article XI, § 11, of the Oregon Constitution. Should the electorate adopt the proposed one and one-half percent proposed constitutional limitation, then, at the next "first Tuesday after the first Monday in November of any year," a statutory reference will be to the then constitutional limitation.

The school board possesses, in itself, no legislative authority. ORS 310.310, a part of the same law permitting school boards to submit levies in excess of constitutional limitations, states specifically:

"Elections for voting upon the question of increasing the tax levy in the counties, municipalities and districts not possessing a separate legislative department , shall be called and held in the manner respectively provided by ORS 310.330 to 310.395." (Emphasis supplied)

Therefore, a school district has authority to submit only those levies which the Legislative Assembly has authorized.

Your question is answered in the negative.