Kneeland v. Multnomah County , 139 Or. 356 ( 1932 )

In Banc. This suit is brought to enjoin the county commissioners of Multnomah county from submitting to the vote of the people at the coming primary election, May 20, 1932, the question of an increase in the tax levy above the constitutional limitation of 6 per cent, and to enjoin the commissioners from issuing warrants against such potential fund, should the matter be submitted to the voters and receive favorable action on their part prior to the levying of the tax. The circuit court sustained a demurrer to the complaint and dismissed the suit.

Plaintiff appeals.

The county commissioners, on March 30, 1932, passed the following resolution:

"Now, therefore, it is hereby resolved, ordered and declared, that it is necessary, in the judgment of this board, to increase the amount of the levy on the assessment roll of said Multnomah county for the year 1932 over the amount limited by the constitution except on vote of the people, for the reasons and purposes, and in the amount as follows:

"Special levy of $750,000 on the County Assessment roll of said Multnomah County of and for the year 1932 to provide funds for relief during 1932 and 1933 for the indigent and poor and all others for whom the county legally is authorized to provide relief, and to retire warrants issued for any such purposes during 1932 or 1933. This tax shall not be computed as a part of the revenue which is subject to the limitation of § 11 of Art. XI of the Oregon Constitution and shall be in addition to all other taxes which legally may be levied.

"Be it further resolved, ordered and determined, that the question of such additional tax levy shall be submitted to the legal voters of said Multnomah County at the general primary election to be held throughout said county on May 20, 1932, and that the necessity thereof be certified to the County Clerk in the following form:"

The commissioners thereupon issued the necessary certificate to the county clerk so that the question would be submitted at the general primary election in May.

Art. XI, § 11, of the Constitution provides:

"Unless specifically authorized by a majority of the legal voters voting on the question, neither the state nor any county, municipality, district or body to which the power to levy a tax shall have been delegated shall in any year so exercise that power as to raise a greater amount of revenue for purposes other than the payment of bonded indebtedness or interest thereon * * * than the total amount levied by it in the year immediately preceding * * * plus six per centum thereof;"

The same Constitution provides; Art. III, § 1:

"The powers of the government shall be divided into three separate departments — the legislative, the executive, including the administrative, and the judicial; and no person charged with official duties under one of these departments shall exercise any of the functions of another, except as in this constitution expressly provided."

Art. IV, § 1, provides:

"The legislative authority of the state shall be vested in a legislative assembly, consisting of a Senate and 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 power at their own option to approve or reject at the polls any act of the legislative assembly. * * * 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. * * *"

Art. IV, § 1a, provides:

"* * * The initiative and referendum powers reserved to the people by this constitution are hereby further reserved to the legal voters of every municipality and district as to all local, special, and municipal legislation, of every character, in or for their respective municipalities and districts. The manner of exercising said powers shall be prescribed by general laws, * * *"

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.

The legislature, in its wisdom and in discharge of its duties imposed by the constitution, Art. 4, § 1 supra, and to provide an orderly means of carrying out the said provisions of the constitution, enacted into law what is now known as § 69-1004, Oregon Code 1930, as follows:

"Whenever it is necessary in the estimation of the county court of any county to increase the amount of the tax levy over the amount limited by the constitution except on vote of the people, said county court shall certify to the county clerk that such increase, in its judgment, is necessary, stating the reasons therefor and the amount of such increase is not to exceed one hundred words. Such determination and certificate shall be made not less than thirty-five days before the first Tuesday after the first Monday in November in any year. Thereupon the county clerk shall issue and mail to the respective judges and clerks of election notices in the same manner as herein provided in the case of an election upon the question of increasing the state tax levy. Thereafter the election thus called shall be held on said date in the same manner as other general elections are held and the votes cast upon said election shall be received, counted, returned and canvassed in the same manner as votes for candidates for county officers."

The resolution passed by the county commissioners on March 30, and the certificate issued to the clerk, amounts to a call by the county commissioners, not the people, for a special election for the purpose of permitting the people to exercise the power of referendum reserved in Art. IV, § 1a, and of voting on the proposed increased levy. 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. Article XI, § 11, of the Constitution has not taken away from the legislature any of the powers conferred by Art. IV, § 1, regarding elections. "There can be no valid election except in pursuance of constitutional or statutory authority": State exrel. v. Kozer, 115 Or. 638 (239 P. 805), and cases therein cited; Henderson v. Salem, 137 Or. 541 (1 P.2d 128,4 P.2d 321). Until such time as the people by the constitution or legislation shall give to the county commissioners power to call special elections at other times, the matter remains exclusively in the hands of the legislature to say how and when such elections shall be called. In any event an election once a year on a day fixed for that purpose would seem to be a reasonable provision to enable the voters of the county to exercise their right of permitting the county court to increase the tax levy above the six per cent limitation. There is good reason for the action taken by the legislature in fixing a particular day and having that day, when possible, on the same day as the general election. It prevents a multiplicity of elections. It is an attempt to get as full an expression of the legal voters on the matter as possible. The writer feels that § 69-1004 is clearly constitutional. If it be a restriction upon the right of the people to vote taxes upon themselves, it is such a restriction as the people, by the constitution, conferred upon the legislature power to enact.

However, the real object in calling the election for May 20, the day of the primaries, is not so much for the purpose of getting the consent of the voters to increase the levy, as it is an attempt to evade the debt limitation provision of the Constitution, Art. XI, § 10, and to issue warrants against the potential fund thus permitted to be created, if authorized, prior to the levy being made.

Article XI, § 10, of the Constitution of Oregon provides as follows:

"No county shall create any debt or liability which shall singly or in the aggregate, with previous debts or liabilities, exceed the sum of $5,000, except * * * to build or maintain permanent roads within the county; and debts for permanent roads shall be incurred only on approval of a majority of those voting on the question * * *"

If the county commissioners, before levy is made, may anticipate and issue warrants against the excess fund thus authorized by the voters, by the same logic and with equal facility it may anticipate and issue warrants during the year 1932 against the revenue which, by general law without a vote of the people, it is authorized to levy in the year 1933. If it may so anticipate and expend in the year 1932 the authorized revenues of the year 1933 why not any future year's revenues. Spending unlevied taxes of the county is creating a debt. It was to prevent such expenditure in advance of anticipated revenue that Art. XI, § 10, was placed in the Constitution.

It is no longer open to dispute in Oregon that "after a levyis made, the payment of the taxes is regarded as a certainty, and for the purpose of determining whether an expenditure will exceed the debt limits of a county, it will be assumed the tax has been collected." State ex rel. v. Stannard, 84 Or. 451 (165 P. 566, 571, L.R.A. 1917F, 215). The italics are ours.

The converse of this is equally true, before a levy is made the creation of a fund by taxation is purely anticipatory.

The decree of the circuit court should be reversed and one entered enjoining the defendants and each of them from submitting said question of authorizing an additional tax levy on May 20, 1932, or at any other time than on the first Tuesday after the first Monday in November. Neither party to recover costs.

It is so ordered.

BROWN, RAND, ROSSMAN, and KELLY, JJ., concur.