Oregon Advisory Opinions January 20, 1955: OAG 55-2 (January 20, 1955)

Oregon Attorney General Opinions

1955.

OAG 55-2.

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53

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Under date of January 7, 1955, you presented several questions pertaining to the consolidation of certain school districts. It appears from your letter that petitions for consolidation of school districts were received by the District Boundary Board of Union County from School District No. 10 and from School District No. 1, respectively. On August 22, 1954, the district boundary board met and fixed October 7, 1954, as the date for the election in the two districts. However, in order to avoid difficulties arising from a previously authorized bond issue of School District No. 1, the district boundary board postponed the date for the consolidation elections until February 4, 1955. It now appears that for similar reasons the district boundary board has again postponed the consolidation elections for a month. You further state that:

"Under these circumstances, it is felt by some officials that it would be wisest to completely abandon the consolidation procedure now pending and begin again with new petitions after the completion of the bond issue. * * *"

By your first question you ask to be advised:

"Has the District Boundary Board power to dismiss consolidation petitions on its own motion, if they comply with the statute when submitted?"

The procedure for initiating a consolidation of school districts is found in ORS 330.110, which provides in substance that the proceeding is initiated by a petition from each of the school districts desiring to consolidate, which is presented to the district boundary board, and which petition shall request that the district boundary board submit to the legal voters of the districts the question of consolidation of such districts. The said section further provides that within ten days after receiving such petition the district boundary board shall notify the district school board of each district designated by the petition, fix the date of, and be responsible for giving of notices for a school meeting in each district to vote upon the question of consolidation of the districts specifically designated in the notice.

The principal duty of the district boundary board with respect to petitions for consolidation presented to it is to determine the sufficiency thereof, and thereafter to give the notices and fix the date of election as required by statute. See Opinions of the Attorney General, 1948-1950, p. 155; 1930-1932, p. 256. As stated in State ex rel. v. Hall, 73 Or. 231-237:

"* * * When such petitions are presented to the boundary board, it is the duty of such board to determine whether the petitions are as required by the statute and signed by the requisite number of legal voters in each of the districts petitioning * * *."

See also Opinions of the Attorney General, 1948-1950, p. 39; 1946-1948, p. 177.

If the district boundary board passes upon the sufficiency of the petitions, then it seems clear that it must proceed to give the notices and fix the date for election as required by statute. In the case of Will et al. v. District Boundary Board of Yamhill County et al. 141 Or. 54, the court said:

"* * * When a petition or petitions complying with the requirements of the statutes are filed with the district boundary board, the board should not entertain any conflicting petitions until the first filed is finally disposed of either by being dismissed by the board for a legal reason or by an adverse vote at an election called and held according to law." (p. 63)

To the same effect, see School District No. 1, Multnomah County, v. School District No. 45, Multnomah County, 148 Or. 554.

By reason of the above authorities, it is my opinion that your first question must be answered in the negative.

Your second question is:

"By what procedure may a school district or its members withdraw a consolidation petition after a corresponding petition has been filed by the other district, and the District Boundary Board has acquired jurisdiction?"

In connection with this question it is observed that under ORS 330.110,

"* * * The petition, if from a district of the first class, must contain the signature of at least 100 legal school voters, or if from a district of the second class, at least 50 legal school voters, * * *"

In other words, the petition emanates from the voters of the respective school districts and not from an official body such as a school district board. I take it, therefore, that the question is whether or not any or all of the signers of the petition may withdraw therefrom at this state of the proceedings.

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In the case of State ex rel. v. Fendall et al., 135 Or. 145, it was held that petitioners for the ORGAnization of a union high school district could not withdraw their names after the filing and after notice of hearing had been given by the district boundary board. Recognizing that there is a conflict of authority on the legal proposition involved, the court, at page 152, said:

"The common sense practical rule for this state, where so many governmental activities are initiated by petition, is that the petitions must speak as of the time they are officially presented to the district boundary board, and official cognizance is taken of them by the board causing the requisite notices to be given. Before that time names may be added or withdrawn. After that time the petitions are not subject to such change. * * *"

It is noticed that the foregoing case involved the formation of a union high school, but the statute there involved is distinctly analogous to ORS 330.110. The decision in the Fendall case was followed in State ex rel. v. Clark, 143 Or. 482, where it was held that a person signing a petition for recall for a mayor cannot withdraw his name after presentation of the petition to the city clerk.

There is a conflict of authority as to the right of a petitioner to withdraw or retract at various stages of proceedings after the filing of a petition but before final action by the public body. See Annotation, 126 A.L.R. 1031; 27 A.L.R. (2d) 604. Nevertheless, it appears to the writer that the rule announced by the Oregon Supreme Court in State ex rel. v. Fendall, supra, is controlling. Applying the said rule to the facts submitted, it would appear that the individual petitioners may not withdraw their names for the reason that the district boundary board has taken official cognizance of the sufficiency of the petition and has proceeded to notify the respective school boards of the same. The only matter which has not been concluded by the district boundary board is the fixing of a definite date for the hearing, or school meeting, in the respective districts.

Accordingly, the petitions are not subject to change under your statement of facts.

Further responding to your second inquiry, I know of no procedure, statutory or otherwise, which would authorize the withdrawal of the consolidation petitions, assuming they complied with the statute when submitted and passed upon by the district boundary board.

Your third question is:

"Has a District Boundary Board legal authority to postpone a consolidation election for good cause once the election date has been fixed?"

After passing on the sufficiency of the petitions for consolidation, the district boundary board, under ORS 330.110, has three duties to perform: (1) Within ten days after receipt of the petitions to notify the district school board of each district designated by the petition; (2) fix the date of the school meeting in each district; and (3) be responsible for the giving of notices for the school meetings. As I understand the statement of facts, the board has passed upon the sufficiency of the petitions and has notified the respective school boards, but it has postponed the date of the school elections, and no notices thereof have been given. In the case of Will et al. v. District Boundary Board of Yamhill County et al., 141 Or. 54, the court held that a long delay between the action of the district boundary board, on February 14, in calling an election for the formation of a union high school, and the date set for the election, on November 2, did not invalidate the election ORGAnizing the district. At page 62, it is said:

"* * * The District Boundary Board obtained jurisdiction of the subject matter upon the filing of the proper petitions. It exercised its jurisdiction when it caused due notice to be given fixing the date for hearing remonstrances. It would appear that while the district boundary board retains jurisdiction, * * * it could legally call an election in the proposed consolidated district.

"The board did not lose jurisdiction by adjourning its specially called meeting to a time certain for further consideration of the matter. It could transact any business at the adjourned meeting that it could have considered and acted upon at its specially called meeting: * * *"

It was further stated in the opinion:

"* * * The long delay between the action of the district boundary board in calling the election and the date it set for the election may be subject to criticism, but that is a matter for the legislature rather than the court." (p. 60)

Compare Opinions of the Attorney General, 1950-1952, p.302.

In response to your third inquiry, it is my opinion that where no legal notices of election have been given, and no action has been taken by the respective district school boards in connection with the proposed election, the district boundary board retains jurisdiction to fix the date of the election, and possesses the legal authority to postpone the same.