Oregon Advisory Opinions June 27, 1950: OAG 50-67 (June 27, 1950)
Collection: Oregon Attorney General Opinions
Docket: OAG 50-67
Date: June 27, 1950
Advisory Opinion Text
OAG 50-67.
District Attorney, Benton County
Under date of June 24, 1950, you submitted the following statement of facts:
"That part of Adair Village presently occupied by families, principally students and faculty members of Oregon State College, was part of the Tampico School District prior to becoming Camp Adair, a Federal reservation, United States Government. After Camp Adair ceased to be used for military purposes, Oregon State College obtained a portion thereof, which includes the part now known as Adair Village, and recently the property has been turned over without reservation by the Federal Government to the State of Oregon. During the war years the Tampico School District was consolidated into the Mountain View District, and at present there is no Tampico District."
Because of the large number of children of school age residing in Adair Village a problem has arisen as to the
education of the children, and you ask our opinion:
"(1) Of what school district, if any, is Adair Village a part?"
From our research of this problem we have concluded that the acquisition of land by a tax-exempt body within a school district does not in and of itself remove the territory from the district, unless the statutory procedure for dividing or removing part of a school district is followed. In other words, it is possible for the school district to contain within its boundaries certain lands which are not the subject of taxation, and yet the persons residing thereon may be entitled to school privileges. For example, in Opinions of the Attorney General, 1942-1944, page 95, it was decided that the nonhigh school board of Multnomah county was legally responsible for the education of high school pupils residing at Bonneville dam, the federal government not having assumed exclusive jurisdiction over the area. The final paragraph of the opinion reads:
"Where, as here, the county retains the obligation to provide schooling but is deprived of tax revenues from real estate because the federal government has acquired ownership of the land on which the children reside, the remedy for the inequity can only be sought in federal or state legislation."
However, a different result occurs where the federal government acquires exclusive jurisdiction of certain territory within a state. In Opinions of the Attorney General, 1936-1938, page 566, this office held that children of school age residing at Fort Stevens should not be included within the annual school census of a school district since the legislature of this state ceded to the United States exclusive jurisdiction over the military reservation. At page 568 it was said:
"Since the military reservation of Fort Stevens is federal territory under the jurisdiction of the United States, it is not in or a part of any school district in the state of Oregon. Therefore, it follows that children who with their parents reside in said Fort Stevens should not be included in the school census of school district No. 6 of Clatsop county, Oregon." (Emphasis supplied)
The decisions cited in the foregoing opinion indicate that the great weight of authority is to the effect that lands acquired in accordance with the provisions of the federal constitution for forts, arsenals, etc., cease to be a part of the state and become federal territory over which the federal government has exclusive jurisdiction. Persons residing thereon are not residents of the state for the purpose of exercising a right of franchise or for school purposes: Lowe v. Lowe, 150 Md. 592, 193 A. 729; 46 A. L. R. 983; Newcomb v. Rockport, 183 Mass. 74, 66 N. E. 587. See also State v. Board of Education, (Ohio) 57 N. E. (2d) 118; State v. Corcoran, (Kan.) 128 P. (2d) 999; Arledge v. Mabry, (N. Mex.) 197 P. (2d) 885. See also Opinions of the Attorney General, 1926-1928, p. 356.
When the federal government acquired the Camp Adair area the legislature of this state ceded exclusive jurisdiction over the same. See Opinions of the Attorney General, 1944-1946, pp. 324, 335. Therefore, in accordance with the above cited authority, this territory was removed by operation of law from the school district or districts of which it was formerly a part. Upon its return to private or state ownership and upon the relinquishment of federal jurisdiction it necessarily becomes unorganized school territory, for once having been removed from a school district there is no legal basis for assuming that it is to be incorporated into adjacent school districts.
Therefore, in response to your first question it is our opinion that Adair Village is unorganized school territory and is not a part of the Tampico school district, and it follows that it could not be part of the consolidated Mountain View district.
"(2) What school district, if any, is required to provide educational facilities for the children?"
There is no statute in this state providing for the education of elementary school children residing in unorganized school territory, other than the non-high school district law which, of course, refers only to the education of high school pupils not residing within a high school district. The school laws of this state apparently contemplate that where more than six children reside in particular area it shall be organized into or annexed to a school district: § 111-401 et seq., and § 111-803, O. C. L. A. However, until this is done no duty is imposed upon adjacent school districts to admit nonresident children free of charge. This is evident by § 111-1051, O. C. L. A., which provides in part:
"They [district school boards] shall admit free of charge to the schools of their district all persons between the ages of six and twenty-one residing therein, and all other persons may be admitted on such terms as the district may direct; * * *." (Emphasis supplied)
In Opinions of the Attorney General, 1936-1938, pages 566, 568, it was said:
"This statute authorizes the district school board to admit all persons not of school age and those not residents of the district 'on such terms as the district may direct'. Just how much direction shall be given by the
district is not stated in the statute. The terms upon which such pupils may be admitted to the schools of the district, if at all, may be decided and declared by the legal school voters of the school district at any annual school meeting or at any special school meeting, and the district school board would be bound to proceed in the matter as so directed."
It may be mentioned that in 1945 the legislature of this state passed an act making it the duty of adjacent school districts to admit elementary school children from federal reservations free of charge: Chapter 398, Oregon Laws 1945. Obviously, however, this statute no longer has any application to the Camp Adair area.
"(3) Are the parents residing in Adair Village entitled to vote and otherwise participate in school district meetings, and if so, what district?"
The parents of school children residing at Adair Village can only participate in school district meetings of the district of which they are residents. Since Adair Village is located in unorganized school territory persons residing therein are not authorized to vote in the Mountain View school district, unless, of course, the said area is annexed to the Mountain View district. For qualifications of electors at school district meetings and elections, see Chapter 329, Oregon Laws 1949, and § 6, Article VIII, constitution of Oregon (Oregon Laws 1949, p. 5).
Your question relates to what funds, if any, are available to help provide added facilities necessary for the education of children if they are to be educated by the Mountain View district. In view of what has been previously said it is not necessary to answer this question at this time.
"(5) If Adair Village is not properly part of any school district because no affirmative action has been taken since the property ceased to belong to the Federal Government to include it in a school district, what procedure should be followed to incorporate it in Mountain View or some other school district?"
The procedure for annexing unincorporated territory to school districts is found in § 111-803, O. C. L. A. This section provides in substance that the district boundary board may, upon petition of three or more legal voters interested, change, divide or abolish the districts of its counties. Before any change is made in the boundaries of any existing district the superintendent shall cause to be posted in three public and conspicuous places in such district, at least 10 days before action is take, written or printed notices of the changes to be made in the boundaries of any existing district. We call your further attention to §§ 111-401, 111-402 and 111-403, O. C. L. A., which relate to the further duties of the district boundary board.
As to the powers of district boundary boards in connection with change of boundaries of organized school districts, see Opinions of the Attorney General, 1946-1948, pp. 177 and 525.