Oregon Advisory Opinions May 18, 1970: OAG 70-39 (May 18, 1970)
Collection: Oregon Attorney General Opinions
Docket: OAG 70-39
Date: May 18, 1970
Advisory Opinion Text
OAG 70-39.
May a constitutional amendment be validly approved which limits property taxes contingent upon a binding choice between two or more methods of taxation to replace revenue lost through the property tax limitation?
ANSWER GIVEN
Yes.
It is generally considered that a majority of voters in Oregon would favor a constitutional amendment resulting in property tax reduction. While it is recognized that some other form of taxation must replace revenues which would be lost through a reduction in the property tax, there is substantial disagreement among the voters as to what specific type of tax should replace revenue so lost. It has been urged therefore that the voters should be allowed a choice whereby they could vote for a constitutional amendment reducing property taxes and at the same time commit themselves to
accepting whichever of two or more specific alternate sources of tax revenue would gain the greatest approval by the voters.
In our opinion, there is no reason why such a choice could not legally be presented to the Oregon voters. It is elementary that the state Constitution is an instrument of limitations, and not an instrument of grant. The legislature may take any action which is not prohibited by the constitution. Marr v. Fisher , 182 Or. 383, 187 P.2d 966 (1947). The Constitution contains no provision limiting the form of the ballot or the manner upon which measures are to be voted which would prohibit the action here proposed.
Article XVII, Section 1, requires that when two or more amendments to the constitution are submitted to the voters of the state, they must be submitted so that each amendment may be voted upon separately. From the question presented, it is assumed that all of the measures to be voted upon will be part of a tax "package" which will not constitute, even indirectly, more than one amendment to the constitution.
It may be construed that such a "tax package" may be unfair to voters who would be induced into voting in favor of the constitutional amendment reducing property taxes, on the basis that they believe, or wish, that the specific tax which would provice alternate sources of revenue will be the particular tax which they personally favor. Thus, it may be argued, a voter who approved the constitutional amendment but who voted for an alternative tax source other than that which was chosen, could feel
"tricked". He would not have voted for the amendment had he known that a tax which he did not favor would be the alternative selected.
Arguably, in support of such contention may be cited the case of Wasco County P.U.D. v. Kelly , 171 Or. 691, 708, 137 P.2d 295 (1943), where the court said:
Also, Article II, Section 1, Oregon Constitution, provides:"It is generally held that it is against the spirit of popular elections to require the voters to express their choice upon more than one proposition combined into one question."
In Ladd v. Holmes , 40 Or. 167, 66 P. 714 (1901), the Oregon court said that this constitutional provision means that every elector has "the right to have his vote counted for all its worth, in proportion to the whole number of qualified electors desiring to exercise their privilege.""All elections shall be free and equal."
But here there is not presented a situation where an elector is truly required to vote upon more than one proposition, or where his vote is not "equal". It can be urged that a voter is being asked to take a chance in voting for a constitutional amendment reducing property taxes which may or may not make effective the particular tax for supplementary revenue which the voter most prefers. However, any informed voter will know exactly what he is doing, and the ballot title for the measure presented will advise him of the effect of his vote.
Representative Rogers suggests the following proposal: The legislature could place upon the ballot a constitutional amendment for a property tax limitation, together with two or more tax proposals, any of which would provide additional tax revenue to replace that which would be lost through adoption of the property tax limitation. The constitutional amendment would provide that upon its approval, the supplementary tax proposal gaining the most votes would become effective.
The ballot would be so arranged nat, instead of the familiar form of voting "yes" or "no" on each tax proposal, the voter would be instructed only to indicate his choice by voting in favor of that tax which he most desired (or considered least unfavorable) as a replacement for property tax revenues which would be lost. This multiple-choice arrangement on the ballot would fairly present the voter with the proposition that, in voting for the constitutional amendment limiting property taxes, he would thereby assent to whatever form of taxation most of his fellow voters chose. We find no constitutional objection to this type of proposal. Although Article IV, Section 1, Oregon Constitution, generally requires that a ballot measure may become effective only upon receiving a "majority" of votes, this requirement would be obviated by a specific provision in the constitutional amendment which would provide that any tax receiving the highest number of votes would become effective as law.
The Legislature must take care to provide in sufficient
detail the manner of voting and particularly to indicate whether a voter may be allowed to determine his preference concerning the form of taxation to replace revenues lost through a constitutional amendment for property tax limitation although he may wish to vote against the constitutional amendment itself, or conceivably cast no vote at all on the constitutional measure. It must be further specified, in the case where more than one form of taxation is on the ballot as a source of revenue, whether the voter may vote for more than one tax. For example, if three tax measures were on the ballot, a voter who strongly opposed only one of the measures, may wish to help defeat that measure by voting in favor of the other two. We are informed that all voting systems now in use in the State of Oregon can be adapted to carry out whatever form of voting the Legislature may desire to specify in this regard.
It is recognized that the conclusion herein reached modifies or overrules opinions previously issued by this office and which are now reviewed and discussed.
In 33 Op. Att'y Gen. 283 (1967), this office was asked whether the following would be lawful:
1. Place on the ballot a constitutional amendment for property tax limitation which would, if approved, make operative a net receipts tax.
2. Place on the same ballot a proposal for a sales tax which would not take effect unless the constitutional amendment were approved, and providing that if it (the sales tax) is approved the net receipts tax would be repealed.
We pointed out that this arrangement would logically require the voter who favored a sales tax to vote first for the constitutional amendment which would make the net receipts tax effective if the sales tax were not approved. The effect would be that the sales tax advocate would, in voting in favor of the constitutional amendment, also be voting for the net receipts tax which he in fact opposes. It was concluded that the proposal was not lawful relying upon Wasco County P.U.D. v. Kelly , supra .
While the court's comment on the salutary spirit of popular elections in the Wasco County P.U.D. case is indeed germane, the opinion, in our present judgment, paid insufficient attention to the constitutional rule enunciated in Marr v. Fisher , supra , to the effect that the power of the Legislature is plenary except where action has been prohibited by the constitution. We find no authority in point which would invalidate the proposal considered in the opinion; and, therefore, it is withdrawn.
In 33 Op. Att'y Gen. 337 (1967), this office passed upon (as far as relevant here) the following election proposal:
(1) A constitutional amendment for property tax limitation, making Tax "A" operative unless rendered inoperative by later approval of Tax "B".
(2) A subsequent election on Tax "B".
It was concluded that this would be unlawful because a voter would be "lured" into voting for the constitutional amendment with Tax "A" in hope that Tax "B" would later be enacted. We find the reasoning of that opinion to be specious. As long as the
voters are fairly informed of the effect of their vote upon a proposal, there is no constitutional prohibition against providing for such elections on a constitutional amendment and tax measure.
With greater force, this reasoning applies against the conclusion reached in 33 Op. Att'y Gen. 364 (1967), where it had been proposed that Tax "B" would become effective separately and irrespective of a constitutional amendment tied to Tax "A" if Tax "B" were approved, Tax "A" would be repealed. There, from an analysis of the wishes and hopes of a voter who would vote in favor of the constitutional amendment, it was concluded that a voter could be enticed into casting a "yes" vote there although he actually only wanted Tax "B". Such reasoning may be valid psychologically but cannot be the basis for an innovative rule of constitutional law enunciated by this office.
Attorney General Opinion 6570, 34 Op. Att'y Gen. 323 (1968), concluded that a constitutional amendment for property tax limitation which would make effective one of two tax measures which received the most votes, whether or not it actually received a majority vote, would not be lawful. The opinion concluded that a vote in favor of the constitutional amendment would be a vote in favor of "some" tax -- either Tax "A" or Tax "B" -- and thus unfair and unlawful as luring the voter into the unknown. We now reject the reasoning and the conclusion of that portion of the opinion.
The latter opinion, however, approved the following proposal:
"(1) Submit a constitutional amendment imposing a property tax limitation. Provide in this amendment that the property tax limit is not operative until the people have approved a tax measure referred to them by the legislature and designated as a source of revenues in lieu of those to be lost. Provide in the amendment that if the people approve both tax measures separately submitted at the same election, only the measure receiving the higher number of votes shall become law. Provide that the constitutional amendment applies retrospectively to the date of the election at which it is approved and the two tax measures are voted on.
"(2) Refer two tax measures for approval or rejection at the same election at which the constitutional amendment is voted on. Designate each as the source of revenues in lieu of those to be lost through operation of the property tax relief provisions."
We note that this proposal was essentially one which had been suggested in 33 Op. Att'y Gen. 283 (1967) and was not objectionable. We adhere to that conclusion.
It is concluded, therefore, that a constitutional amendment would not be invalid solely because it limits property taxes contingent upon a pending choice between two or more methods of taxation to replace revenue lost through the property tax limitation.