Oregon Advisory Opinions August 18, 1964: OAG 64-94 (August 18, 1964)

OAG 64-94.

Signers of petition for change of boundaries between two school districts, whereby territory will be transferred from one district to the other, must be persons who reside, own or occupy real property within either or both districts; signers of remonstrance against change must be legal voters who may reside in either district.

You make the following requests:

"We request your interpretation of certain of the provisions of ORS 330.090, relating to the creation, alteration or abolition of school districts by the district boundary board or by petition.

"The contemplated action is the transfer of some of the territory of one district to another contiguous district. The questions are:

"(1) Must the signers of the petition be only those persons residing or owning or occupying real property within the territory encompassed by the proposal (that is, the territory of the proposed transfer and the district to which it is to be transferred), or may the signers be from anywhere within either or both districts involved?

"(2) Would the answer be different to question (1) if, instead of a transfer of territory from one district to the other, the pro

posal was to join the two districts in their entirety?

"We also request your interpretation of certain of the provisions of ORS 330.100, relating to notice, hearing, remonstrance, election and effective date of change.

"The contemplated action is the same as that stated above, and the questions are:

"(1) Must the signers of the remonstrance be only those legal voters residing within the territory encompassed by the proposal (that is, the territory of the proposed transfer and the district to which it is to be transferred), or may the signers be from anywhere within either or both districts?

"(2) Would the answer be different to question (1) if, instead of a transfer of territory from one district to another, the pro

posal was to join the two districts in their entirety?"

Subsection (1) of ORS 330.090 is the portion of the statute which relates to your first two questions. It provides as follows:

"The district boundary board on its own motion or on petition of three persons residing or owning or occupying real property within territory embraced within a proposed merger or consolidation, annexation or boundary change may alter the boundaries of districts, annex territory to districts or merge or consolidate smaller districts into larger districts in the manner provided in ORS 330.090 to 330.105 if it finds: * * *"

ORS 330.090 was enacted as new legislation by the 1963 Legislative Assembly and was made a part of ORS chapter 330. Chapter 282, §§ 11 and 13, Oregon Laws 1963. However, the subject matter of this legislation was formerly embodied in ORS 329.730, the pertinent portion of which provides:

"(1) The district boundary board may establish new districts on petition of three legal voters of a proposed new district if it finds that a new district is necessary for the proper instruction of children living in the area of the proposed new district.

"(2) Upon petition of at least three interested legal voters, the boundary board may change, divide or abolish the districts of its county if it finds: * * *"

The phrase "interested legal voters" as contained in the portion of ORS 329.730 quoted above was stated as "legal voters interested" in earlier versions of this legislation. This earlier version is discussed in Opinions of the Attorney General, 1932-1934, p. 138. There it was said:

"The provision in said statute, 'upon petition of three or more legal voters interested', remains unchanged since its enactment by the legislative assembly of 1903. No residence requirements are contained in said provision. Therefore, it is my opinion that the legislature intended to permit any three or more legal voters interested, who reside in either one or both of the districts concerned in an annexation of school districts, to sign such petition."

We find that the 1963 legislation effected important changes in the law, a portion of which would now make the above interpretations inapplicable. These changes are:

(1) The boundary board can now initiate proceedings on its own motion, where it formerly could not do so.

(2) Qualifications for signers of the petition now are that they are "persons residing or owning or occupying real property within territory embraced within a proposed merger or consolidation, annexation or boundary change * * *."

These changes tend in certain respects to liberalize the procedure and in other respects to impose greater limitations. The boundary board, can now act on its own without a petition, and the petition, if such is used to initiate proceedings, may be signed by persons other than legal voters. The signers of the petition, however, must now have a certain relationship to the "territory embraced within a proposed merger or consolidation, annexation or boundary change." The signers must now reside within or own or occupy real property within the "territory embraced" by the proposed change, instead of simply being an "interested" legal voter. The answer to your first question relating to ORS 330.090 would therefore be that the signers of the petition could only be those persons residing or owning or occupying real property within the territory encompassed by the proposal.

The answer to your second question relating to ORS 330.090 follows from the same reasoning used in arriving at an answer to the first question. Since the proposal is to join two districts in their entirety, the two districts would constitute the "territory embraced" by such proposal and the signers could be from either or both districts involved.

Subsection (2) of ORS 330.100 is the portion of the statute which is involved with your last two questions. The pertinent part thereof provides as follows:

"If a remonstrance signed by five percent or 500 persons, whichever is less, of the legal voters in a school district or area affected by the proposed change is filed with the district boundary board * * *." (Emphasis supplied)

It is to be noted that the qualifications for a signer of the remonstrance are that the person is a "legal voter" and that he reside in the school district or area "affected." It is our opinion that where there is a proposed transfer of territory from one district to another the area "affected" includes the territory of both school districts. Therefore, legal voters, residing within either or both districts, including the territory proposed to be transferred, would be qualified to sign a remonstrance. We

believe that this answers your last two questions.