dissenting
The City of Eugene wants to ask its citizens to indicate their preference between two alternative policies, one of which the city council may, but need not, decide to enact as a city ordinance. The city has made provisions for asking such advice under its home rule charter, as it is entitled to do. Or Const, Art XI, § 2.1
The Secretary of State has instructed Lane County election officials to exclude the city’s advisory question from the election to be held on May 17, 1988. The Secretary’s reason is not that the question is advisory only, for the Secretary is including in the election another advisory question of the Eugene City Council asking whether its voters favor or oppose *652adoption of a related ordinance. The Secretary’s objection is that the question here at issue cannot be answered “yes” or “no,” as required for the “official ballot” under ORS 254.145(6). The city, however, responds that it is prepared to print additional paper ballots at its own expense if the respondent election officials will permit voters to use them, but respondents will not do so.
The dispute centers on the law that places all elections under the county clerks and the Secretary of State. ORS 246.200 provides:
“Except as specifically provided otherwise in the statute laws of this state, the county clerk shall be the only election officer to conduct any election in this state. For the purpose of this section, the conduct of an election includes, but is not limited to, establishing precincts and polling places, preparing ballots and sample ballots, and receiving and processing votes.”
The statute includes city and special district elections. Although the election officer is a county official, that officer is responsible for conducting elections for cities and districts as well as for the state. ORS 246.200 specifies that the county clerk shall be the only election officer.
The City of Eugene has designated the desired advisory vote on the preference between two potential ordinances as a city election. If the statute lets the Secretary of State second-guess the city on that point, the city must have some other way to conduct its election; otherwise the statute would be unconstitutional. But ORS 246.200 specifies that the county clerk shall be the only election officer to conduct any election in this state. Beyond question the 1979 election statutes meant to monopolize the conduct of elections under the county election officers and the Secretary of State. Or Laws 1979, ch 190 and 317. Under ORS 246.200, the city cannot legally have its own election officer and conduct a city election (assuming that this were practical), if we respect the words “only election officer” and “any election in this state” and the legislative policy they embody. And, once all election personnel and machinery have been centralized under the county clerk, a separate city vote without using the county’s personnel and facilities may be quite impractical in a city that retains no such facilities of its own, particularly a city the size of Eugene.
*653The respondent election officials and the majority of this court do not deny the difficulties resulting from their reading of ORS 246.200. They choose to avoid dealing with the constitutional problem by asserting that it is not before us until a city tries to conduct its own election on an issue like the present preference vote and someone tries to prevent it.
But for the opening left by the majority for letting the city add its own “unofficial” ballots to the “official” state-prepared ballot, today’s decision would conclusively force separate city elections on questions that the Secretary of State deems unfit for the state-prepared ballot. That contradicts the legislature’s choice expressed in the strong language of ORS 246.200. For, whatever one may think of advisory plebiscites, there can be little doubt that the constitution allows cities to conduct them, and not only by empowering each city to determine its political form and procedures under Article XI, section 2. See LaGrande/Astoria v. PERB, 281 Or 137, 576 P2d 1204, aff’d on rehearing, 284 Or 173, 586 P2d 765 (1978). We are dealing with a city’s official effort to poll its citizens on a question of official city policy, not renting a place on the ballot for a preference poll between old and new Coca Cola. To forbid the city entirely to conduct a vote to learn the citizens’ wishes also would appear to be a law “restraining any of the inhabitants of the State * * * from instructing their Representatives,” contrary to Article I, section 26 of the Constitution.
All of this concern is unnecessary. The statute can be squared with the constitution. The city does not insist that the state prepare a ballot containing a question that cannot be answered “yes” or “no,” if that is the Secretary’s only legal objection. The city should be allowed to go forward with the separate ballot it is prepared to have printed for itself. The city needs the election officials in order to staff precincts and carry out the election process, whether or not the state prints the “official ballot” under ORS 254.135 and 254.145. This would conform to the legislature’s assignment of city elections exclusively to the county clerks in ORS 246.200. To let the Secretary of State force some city elections out of the county election system does not conform to that legislative policy.
Perhaps the city was not entitled to all the relief that it demanded and that the circuit court ordered, but it was entitled to some modification of the order. The respondents *654should be ordered to make their services available to the city to conduct its advisory election between the two policies that it contemplates enacting into a city ordinance, using city ballots. Because the court affirms the contrary decision of the Court of Appeals, I dissent.
Article XI, section 2 of the Oregon Constitution provides:
“The Legislative Assembly shall not enact, amend or repeal any charter or act of incorporation for any municipality, city or town. The legal voters of every city and town are hereby granted power to enact and amend their municipal charter * *
By Ordinance No. 19534, enacted February 8, 1988, the Eugene City Council added the following section to the Eugene Code:
“Advisory Elections
“(1) Whenever the city council deems it necessary, it may send a question or proposition to the electors for their advice. The calling of such an election shall occur during the time set by state and local law for the submission of legislation to the electorate for adoption or rejection.
“(2) The advisory ballot title shall be in a form approved by the city council. The advisory ballot measure may seek selection between substantive options or choices, or it may seek an affirmative or negative response to the proposition or question.”
Eugene Code, § 2.999.