State Ex Rel. Kirsch v. Curnutt

853 P.2d 1312, 317 Or. 92, 1993 Ore. LEXIS 92

• Court: Oregon Supreme Court
• Decided: July 1, 1993
• Docket: CC 87 CV 0061-33; CA A67772; SC S39484
• Status: Published

Opinions

VANHOOMISSEN, J.

This is a case involving the permissibility of forming a health district within the boundaries of a previously established health district. ORS chapter 198 establishes procedures for the formation and organization of a number of types of special districts, including health districts authorized under ORS chapter 440. ORS 198.010(10). At issue in this case is the meaning of ORS 198.720, which provides in part:

“Except as otherwise specifically provided by the principal Act:

“ (2) A district may not include territory included within another district formed under the same principal Act when the other district is authorized to perform and is performing the services the affected district is authorized to perform, unless:

“(a) Withdrawal of such territory is proposed and the territory is withdrawn by withdrawal proceedings conducted in the other district simultaneously with the formation * * * proceedings * * *; or

“(b) The principal Act provides for automatic withdrawal of the affected territory in such a case.”¹ (Emphasis added.)

The material facts are not in dispute. Mountain View Hospital District (MVHD) was formed under ORS chapter 440 in 1964 and has existed continuously since then. It is located within, and includes most of, Jefferson County. MVHD performs some of the health services authorized by ORS chapter 440, including operation of a hospital, ORS 440.360(10), but does not perform ambulance service, ORS 440.360(12). Between 1964 and 1985, the City of Madras furnished ambulance service to the area. In 1985, Madras discontinued its ambulance service and donated its ambulance equipment to a group of volunteers.

The volunteers considered, but rejected, the possibility of affiliating with MVHD in providing ambulance service. Instead, pursuant to ORS chapter 198, the volunteers petitioned for a special election to create a new health district. In September 1986, voters approved the new district, the Jefferson County Emergency Services District (JCESD). JCESD is entirely within the boundaries of MVHD, but it is smaller than MVHD.

MVHD and JCESD are authorized under the same principal act and have identical powers and purposes, including: the power to operate health care facilities and to provide ambulance services and clinic facilities, ORS 440.320(1), 440.360(12) and (13); to sue and be sued, ORS 440.360(1); to enter into contractual agreements, ORS 440.360(2); to bor-rowmoney, ORS 440.360(14); and to “assess, levy, and collect taxes” from inhabitants up to a statutory maximum rate, ORS 440.395(1).² See ORS 440.360(2) (“Any corporation formed under this chapter shall have all the powers necessary to carry out the purposes of ORS 440.315 to 440.410 * * *”).

MVHD brought an action under ORS 30.510(1),³ seeking a declaration that JCESD was formed invalidly and that its officers were, therefore, holding office illegally. The trial court entered judgment in favor of JCESD, reasoning that, although MVHD and JCESD were formed under the same principal act, each was performing a different service and that ORS 198.720(2) prohibited the formation of a second district only where the pre-existing district actually is performing the same service that the second district proposes to perform. MVHD appealed.

The Court of Appeals, interpreting ORS 198.720(2) according to “the well-settled fundamental principle of municipal law that there cannot be, at the same time, within the same territory, two distinct municipal corporations, exercising the same powers, jurisdiction and privileges,” and noting that “MVHD is performing the services it is authorized to perform, ’ ’ concluded that the formation of JCESD was invalid, and that its officers were holding office illegally. State ex rel Kirsch v. Curnutt, 113 Or App 539, 542-43, 833 P2d 331 (1992). For the reasons that follow, we reverse.

The outcome turns on the meaning of ORS 198.720(2).⁴

In the construction of a statute, the intention of the legislature is to be pursued if possible. ORS 174.020; Mattiza v. Foster, 311 Or 1, 4, 803 P2d 723 (1990). Our function is simply to ascertain and declare what is, in terms or in substance, contained in the statute, not to insert what has been omitted, orto omit what has been inserted. ORS 174.010. The inquiry into legislative intent begins with a examination of the language and context of the statute itself. ORS 174.010; Sanders v. Oregon Pacific States Ins. Co., 314 Or 521, 527, 840 P2d 87 (1992). It is only appropriate to consider legislative history or other aids to construction when the language and context of the statute itself do not provide sufficient insight into the legislative intent.

In this case, the trial judge reasoned that the area’s residents are entitled to have ambulance service if they want it and are willing to pay for it and that, if MVHD was not performing that service, the residents could form a second district to do so. Because JCESD otherwise does not compete with MVHD, the judge concluded that both districts could exist simultaneously. We agree.

This court has stated that “words used in a statute are to be given their ‘plain’ or ‘ordinary’ meaning.” Davis v. Wasco IED, 286 Or 261, 266, 593 P2d 1152 (1979) (citation and footnote omitted). Moreover, this court “may not ignore the plain meaning of unambiguous words of a statute.” Ibid. MVHD is authorized by statute to “perform” ambulance service. It is undisputed, however, that MVHD is not “performing” ambulance services. That is precisely why JCESD was created by the voters of the area. MVHD fails to satisfy the “and is performing” criterion of ORS 198.720(2), in regard to ambulance services. Thus, the plain language of the statute favors JCESD. To conclude otherwise is to read the words “and is performing” out of the statute.

Ignoring the plain words of the statute, i.e., “and is performing,” the dissent proceeds to examine the legislative history of the statute.⁵ It is clear that the legislature never considered the question presented by this case. Although recognizing that both parties’ policy arguments have merit, the dissent states on the basis of a most generous reading of the relatively scant and inconclusive legislative history that the legislature made the policy choice advocated by MVHD and that the terms of ORS 198.720(2) precluded the formation of JCESD. Such a construction either reads the words “and is performing” out of the statute, or perhaps reads into the statute “and is performing any of the services.”⁶ Neither construction is permitted under the rules of statutory construction set forth in ORS 174.010.

This court often has noted that, in discerning the intent of the legislature, a statute should not be construed “so as to ascribe to the legislature the intent to produce an unreasonable or absurd result.” State v. Galligan, 312 Or 35, 39, 816 P2d 601 (1991) (quoting State v. Linthwaite, 295 Or 162, 170, 665 P2d 863 (1983)). To read the words “and is performing’ ’ out of the statute at issue here would produce an unreasonable result; it would allow a special district that does not provide certain essential services to prevent others from providing those services. Only when “the literal import of the words is so at variance with the apparent policy of the legislation as a whole as to bring about an unreasonable result, [must] the literal interpretation * * * give way and the court* * * look beyond the words of the act. ” Johnson v. Star Machinery Co., 270 Or 694, 704, 530 P2d 53 (1974). Here, the literal interpretation of “and is performing” does not bring about an unreasonable result that is at variance with the policy of the legislation. The language of the statute clearly indicates that a second district may not be formed to provide services that duplicate services that the existing district “is performing.” As the dissent would have it, a health district that chose to operate only a nursing home could use the provisions of ORS 198.720 to prevent the voters of the district from arranging for a much-needed hospital, merely because the nursing home was already in operation, i.e. “is performing” one of the functions that a health district may perform. The legislative policy does not justify such a result.

There is nothing to suggest that the legislature intended to deny the voters the right to form another service district when MVHD “is not performing” an essential service authorized by the principal Act under which both districts were formed. In the absence of a clear and unequivocal legislative mandate, this court will not override the will of the JCESD voters. In this case, as even the dissent concedes, no clear and unequivocal legislative mandate is present.

In summary, the plain language of the statute favors JCESD. Moreover, even if we were to consider the language of the statute to be ambiguous and turn to the legislative history, nothing in that legislative history dictates the result sought by MVHD.

The decision of the Court of Appeals is reversed. The judgment of the circuit court is affirmed.

1 ORS 198.705(15) provides:

“ ‘Principal Act’ means the statutes which describe the powers of a district, including the statutes under which a district is proposed or is operating.”

The principal act governing health districts, ORS chapter 440, does not contain a provision for automatic withdrawal of “the affected territory” in the situation presented here.

2 The ballot used during the election creating JCESD stated that the purpose of the district would be “to provide medical services including but not limited to providing ambulance service within the District area.”

3 ORS 30.510 provides in part:

“An action at law may be maintained in the name of the state * * * against the person offending, in the following cases:

“(1) When any person usurps, intrudes into, or unlawfully holds or exercises any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state[.]”

4 ORS 198.720(2) was enacted in 1971. This is the first time the statute has been interpreted by this court.

5 The legislative history relied on by the dissent does not support its conclusion. The dissent makes much of comments made during the public hearings of a 1967-69 legislative interim committee when proposed Senate Bill 41 was being considered, concluding that those comments suggest its result in this case. Because the legislature rejected SB 41, those comments are an exceedingly thin reed on which to rely. After SB 41 was rejected by the 1969 legislature, the Interim Committee of Governmental Affairs revised the legislation and introduced the revised version as House Bill 1022 in the 1971 legislative session.

There is no relevant legislative history on HB1022, which became ORS 198.720. The legislative history on which the dissent relies is neither reliable nor persuasive. On this meager history, the dissent concludes that a second district may not be formed in the same territory, even if the existing district is not exercising all of its available powers. The question of what the legislature intended in a situation such as is presented in this case was not even asked, much less answered, during the interim committee hearings.

6 Although the dissent would affirm the Court of Appeals’ result in this case, the dissent fails to discuss the Court of Appeals’ analysis or the authorities relied on by that court. None of the authorities cited by the Court of Appeals necessarily supports that court’s conclusion. None of them interprets ORS 198.720(2).