Chapter §10.5 COUNTY HOME RULE

• Jurisdiction: Oregon

§10.5 COUNTY HOME RULE

§10.5-1 Traditional Status of Counties

Geographically and governmentally, counties occupy a midpoint between cities and the state. The legislature creates counties and defines their boundaries by metes and bounds descriptions. ORS ch 201. Before the county home rule amendments in 1958, counties' duties and powers were the ones set forth in statutes—no more, no less. With no charter as an additional source of powers, it was wholly accurate to describe counties as purely state agents. Fales v. Multnomah County, 119 Or 127, 133, 248 P 151 (1926). Early statutes simply assigned duties to counties, but over time, permissive statutes granted authority to carry out additional functions that a county chose to take on, such as libraries, parks, hospitals, and cemeteries.

Carriker v. Lake County, 89 Or 240, 171 P 407 (1918), illustrates the narrow scope of county authority without home rule. By initiative, Lake County voters authorized a jackrabbit bounty and approved a county tax levy to pay for it. The court struck down the bounty and the tax levy because neither statute nor statewide vote had granted the county the power to enact a jackrabbit bounty. As to the county's contention that the right of initiative guaranteed by Article IV, section 1a of the Oregon Constitution, granted the people of a county the power to pass a law for their county, the court quoted Rose v. Port of Portland for the proposition that "'no local subdivision of government except cities and towns can appropriate legislative power unto itself.'" Carriker, 89 Or at 243 (quoting Rose v. Port of Portland, 82 Or 541, 556-57, 162 P 498(1917)). In terms of governmental power, the county was like a port or other statutorily created special district, rather than a city or town.

Carriker did not hold that county voters lacked initiative and referendum powers as to matters within a county's authority as granted by the state, but only that the initiative could not be used to create a new county power beyond what the state had already conferred. Thus, for example, if the statutes authorized counties to create county parks, the voters could implement that authority through an initiative measure. Cf. Kosydar v. Collins, 201 Or 271, 270 P2d 132 (1954) (upholding Lincoln County initiative to move county seat from Toledo to Newport).

§10.5-2 The 1958 Constitutional Amendment

The limitations on county authority and the inconvenience of having to ask the legislature prompted efforts to...