Oregon Advisory Opinions August 04, 1949: OAG 49-107 (August 4, 1949)

Oregon Attorney General Opinions

1949.

OAG 49-107.

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Dear Sir: In your letter of August 1, 1949, the question was presented whether or not a school bond election held on July 29, 1949, in school district No. 103, Marion county, Woodburn, Oregon, was legally called and conducted. You state that:

"The call for the election was first posted in the district on July 7, and was published on the same day and again on July 14. The posted and published notices called the election between the hours of 2:00 pm to 7:00 pm, July 29, 1949. Between the date of last publication and the date of the election. Chapter 288, Oregon Laws 1949, became effective which sets the hours of bond elections from 2:00 pm to 8:00 pm. The people present at a meeting held immediately prior to the opening of the polls voted to authorize the board to comply with the new law despite the fact that the notices of the election were from 2:00 pm to 7:00 pm.

"The question is whether in your opinion the school board of the district has authority to issue bonds under an affirmative vote of the people of the district in view of the change of time of holding the election."

You further informed us that the result of the election showed 433 votes in favor of the issuance of the bonds and 300 negative votes.

Responding to your inquiry it is an established rule in most jurisdictions that irregularities in opening and closing of the polls will not invalidate an election, particularly where there has been substantial compliance with statutory provisions. In 43 Am. Jur., "Public Securities and Obligations" § 97, p. 349, it is said:

"The general rule that irregularities in the opening and closing of polls will not invalidate an election in the absence of a showing of fraud or the loss or denial of substantial rights is fully applicable to bond elections passing upon the question of issuance of bonds by political subdivisions. Bond elections have been held not to be rendered invalid because the polls were opened a little later, or were opened and closed somewhat earlier than they should have been under the governing regulations. * * *"

See cases reported in Annotations, 66 A. L. R., 1159. The rule in Oregon is to the same effect, our Supreme Court having indicated that statutory provisions relating to the time of opening and closing the polls are directory rather than mandatory. Thus, in State v. Johnson, 76 Or. 85, 87, involving an election for the incorporation of the Port of Bandon, it was said:

"Also, it is objected that the polls were not kept open from 8 A. M. until 8 P. M. on election day; but for such neglect, to render the election void, it should appear that voters were by reason thereof deprived of their right to vote. The failure of the notice to specify that the polls would be open until 8 P. M. could mislead no one. The notice specified that it would be open until 7 P. M., and as there seem to have been no crowding at the polls, or proof that anyone was too late to cast a vote, the objection has no merit."

The case of State v. Hayworth, 152 Or. 416, is particularly in point. Proceedings were brought to determine the validity of the organization of a union high school district. An election was held in school district No. 42 to determine whether the district should join in the formation, and the election polls were kept open from 1 o'clock P. M. to 6 o'clock P. M. At page 418 the Court said:

"In the election in question the school officers of district No. 42 followed the method provided by section 35-2002 for school district bond elections. Under such section the election polls are directed to be kept open between the hours of 2 o'clock p. m. and 7 o'clock p. m. * * * The voters had due notice thereof and it was conducted fairly and honestly. There is no showing that it would have resulted differently had it been held in any other manner. Mere irregularities, not affecting the result, will not be held---especially after a lapse of years---sufficient reason to overthrow an election: Roesch v. Henry, 54 Or. 230 (103 P. 439); Links v. Anderson, 86 Or. 508 (168 P. 605); State v. Bailey, 151 Or. 496 (51 P. (2d) 671), and cases therein cited. In Links v. Anderson, supra, it was contended that the election was invalid because the election officers closed the polls at 5 p. m. instead of 8 p. m. as provided by statute, but the court overruled this contention in the following language:

" 'This, however, is directory only and avails nothing unless it can be shown that some elector was thereby deprived of the right to vote and that the number thus excluded was sufficient to change the result.' "

From the facts submitted it is our belief that the election was properly conducted, in so far as opening and closing

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of the polls is concerned, and that the published notice of election was legally sufficient. The election was called and the notices thereof posted and published in accordance with the statutory provisions then in effect. Section 111-1702, O. C. L. A., prescribed a form of notice calling for an election to be held between the hours of 2 o'clock and 7 o'clock p. m. The section was amended by chapter 228, Oregon Laws 1949, and changed the time for opening and closing of the polls at school bond elections to 2 p. m. to 8 p. m. A similar provision is contained in chapter 188, Oregon Laws 1949. The election in the instant case was held on July 29, 1949, and immediately prior to the opening of the polls the voters assembled, elected the officers of the election and adopted the following resolution:

"Whereas between the publication of notice of this election and this date Chapter 288, Oregon Laws, 1949 became effective and,

"Whereas the said Chapter 288 provides for the keeping open of polls from 2 p. m. to 8 p. m., now therefore,

"Be it resolved,

"That the election board shall keep the polls open until 8 o'clock p. m. Pacific Standard Time on this date for the purpose of complying with the provisions of said Chapter 288."

Thus it appears that the polls were actually open to the voters of the school district between the hours of 2 and 8 p. m. as prescribed by the 1949 law. It is our opinion that the election was in substantial, if not full, compliance with the statute, and, as previously indicated, the statutory provision relating to the time of opening and closing the polls is directory only.

Failure of the notices to specify the particular time of day the polls would be opened and closed as prescribed by the 1949 law should not invalidate the election where the voters of the school district were given full opportunity to exercise their franchise and there is no proof that the voters by reason thereof were deprived of their right to vote: State v. Hall, 73 Or. 231; Nichols v. Yamhill Co., 102 Or. 622. The recent case of Witham v. McNutt et al., decided July 12, 1949, 48 Adv. Shts., p. 1177, thoroughly reviews the earlier decisions and discusses the legal effect of failure to comply with the provisions of a statute concerning the giving of notice of special elections. The Court followed the rule of Roesch v. Henry, 54 Or. 230, to the effect that substantial compliance is sufficient if it is reasonably probable that the irregularities did not affect the outcome. We think this principle is applicable to the instant problem.

Accordingly, it is our opinion that the school board of school district No. 103 has authority, and it is its duty, to issue the bonds which were authorized by an affirmative vote of the people in the school district. See Opinions of the Attorney General, 1946-1948, p. 244; 1938-1940, p. 38.