Petition for rehearing denied October 13, 1931 ON PETITION FOR REHEARING (4 P.2d 321) In Banc. The appellants have filed a petition earnestly requesting a rehearing. In this petition it is first claimed that the court erred in determining that the measure in question could not be submitted at the primary election. *Page 551
"If, by operation of law, the election invariably occurs at stated intervals, without any superinducing cause, except the efflux of time, the election is general, in which case all qualified persons are presumed to have knowledge thereof, and hence the failure of any officer or person upon whom the duty devolves to give a prescribed notice, does not invalidate the votes passed thereat."
* * * * * "In all general elections, the time, place and manner of holding which are prescribed by law, the rule is well settled that electors must take notice thereof, * * *. In the case of special elections, however, all the statutory requirements as to proclamations or other means of giving notice, are considered as mandatory, and must be observed in order to render the vote of the electors participating therein valid. * * * Where, however, some local project may be initiated by petition or other means, an election to determine whether such proposition shall be adopted is special and the electors can not be presumed to have knowledge of an application of the power which calls for the necessity of exercising the electoral franchise, in which instance a compliance of all the statutory requirements in respect to the performance of the conditions precedent is mandatory in order to validate the election." Marsden v.Harlocker, 48 Or. 90 (85 P. 328, 120 Am. St. Rep. 786).
"The description of a general election thus given, though applicable to the facts there involved, is not broad enough to include all elections that might properly come within the modifying term `general.' * * *
"Section 1 of chapter 422, General Laws of Oregon, 1917, conforming to a statement contained in Article IV, Section 1, of the Constitution of this state, declares:
"`A special election shall be held in the several voting precincts of this state on the fourth day of June, 1917.'
"The use of the qualifying word `special' as thus indicated did not make the election so to be held of *Page 552 that kind, for the election having been simultaneously held in every voting precinct of the state conclusively establishes the fact that the election was general and not special * * *."Bethune v. Funk, 85 Or. 246 (166 P. 931).
"The election, although held on the same day as the general election, was special in character. It was not called or held in pursuance of those general statutes which provide for biennial elections for the purpose of choosing public officers, but was called by order of the County Court. * * * Its only relation to the general election arises from the fact that the measure was placed, for the sake of economy and convenience, upon the general ballot. * * * Called as it was for a special purpose by a special order and by a separate and special notice, we are of the opinion that it was a special election for the purpose of voting on the question of issuing bonds." Wilson v. Wasco County, 83 Or. 147 (163 P. 317).
There is quite a difference between submitting an ordinance to the voters "at the next ensuing election" (Oregon Code 1930, 36-2015), and submitting an ordinance to the voters "at the next regular city election" (Salem Ordinance No. 1464), State ex rel.v. Gilmore, 122 Or. 19 (257 P. 21).
Thus it will be seen that an election may be general as to time. It may be general as to purpose. It may be general as to territory, yet special as to time and purpose. It may be general as to time, purpose and territory, and yet special as to electors. When the present primary law was enacted, many voters were excluded from participating in elections thereunder. Only such voters as were in good faith members of a political party, as defined by statute, had the right to vote at such elections. Many electors who were members of a minor political party, or were independent of any *Page 553 party, were not allowed to vote at such elections, unless the notice calling the election specified that some other matter besides the nomination of candidates was submitted: Oregon Code 1930, 36-305.
"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 * * *." Const. art. 4, § 1.
The legislature designated the primary nominating election as a general election: Oregon Code 1930, 36-302; Taylor v. MultnomahCounty, 119 Or. 123 (248 P. 167). The charter of the city of Salem does not designate its primary election as a general election.
"A primary election for the nomination of candidates to be voted for at the regular general election shall be held biennially at the same time that the primary nominating election for state and county offices is held * * *." Charter of the city of Salem, section 4.
[13.] It is also contended in the petition for rehearing that the citizens and city government of Salem have always given ordinance No. 1464 a different interpretation than that given by the court. There is nothing in the record of the case before us regarding any administrative interpretation. It is also contended that ordinance No. 1464 is a remedial statute and should be liberally construed. When it is proposed by ordinance to create an indebtedness against the city for which the property of every citizen will be liable, and at least part of which must be paid by future generations, then every preliminary prerequisite should be strictly complied with.
The petition for rehearing will be denied.
BEAN, C.J., and BELT, J., concur in the result. *Page 554