Oregon Advisory Opinions April 30, 1965: OAG 65-71 (April 30, 1965)

Collection: Oregon Attorney General Opinions
Docket: OAG 65-71
Date: April 30, 1965

Advisory Opinion Text

Oregon Attorney General Opinions

1965.

OAG 65-71.

191

OPINION NO. 65-71

[32 Or. Op. Atty. Gen. 191]

Tax for high school purposes may not be levied upon property which is within both Klamath County School District and Klamath Union High School District; Article I, § 32, Oregon Constitution, is not violated by levy of such tax on less than all territory in Klamath County School District; voters in Klamath Union High School District not entitled to vote on such tax measure.

No. 5967

April 30, 1965

Dr. Leon P. Minear
Superintendent of Public Instruction

You have advised that it is necessary for the Klamath County School District to present to the voters the question of approval of a serial tax levy, the proceeds of which are to be used for high school purposes, and you have submitted the following questions in connection therewith:

"(1) May a serial levy for the purpose of constructing and equipping high schools in the Klamath County School District (which is a county unit school district) be levied against property in the 'overlap' area which lies within both the Klamath County School District and the Klamath Union High School District?

"(2) If the answer to question (1) is in the negative, may the Klamath County School District validly make such a serial levy against property within the district except that which is within the 'overlap' area?

"(3) If the answer to question (2) is in the affirmative, are the voters in the 'overlap' area entitled to vote in such serial levy election?"

In answering your questions, some review of the history of the school district and the applicable provisions of law is appropriate. The Klamath County School District is a "county unit" organization governed generally by the provisions of ORS chapter 333. The county unit law was established by the legislature in 1921. Chapter 265, Oregon Laws 1921. As originally enacted it applied only to elementary school districts and provided that in each county in which the Act became effective there would be three classes of school districts, known as city school districts, town school districts and county districts. Each city or incorporated town together with any contiguous territory attached to it for school purposes, having 1,000 or more children of school age, constituted a city school district and each town or village having more than 500 but not more than 1,000 children, constituted a town school district. Chapter 265, §§ 1, 2 and 3, Oregon Laws 1921. All the territory in the county not included in the city school district or a town school district constituted the county school district. Ibid, § 4. Klamath County voted in 1922 to come under the county unit law. It would appear that following its formation pursuant to this law, the Klamath County School District took in all of the elementary school districts in Klamath County except for the Klamath Falls

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City School District. It did not include any high schools. Section 18 of chapter 265 originally provided as follows:

"The district school board of each school district shall have the power to levy a tax once each year upon all real and personal property in such school district for the maintenance, operation and support of the public elementary school system of said district and for acquiring or improving school sites."

The county unit law was codified in chapter VIII, Title XXXV, Oregon Code 1930; and by chapter 246, Oregon Laws 1933, the legislature made changes material to this inquiry. Section 35-818, Oregon Code 1930, as amended by chapter 246, § 16, Oregon Laws 1933, reads as follows:

"The county school board shall have the power to levy a tax once each year upon all real and personal property in the school district for the maintenance, operation and support of the public school system of said district and for acquiring or improving school sites."

This amendment changed the name from "district school board" to "county school board" and eliminated the word "elementary" from the provision as it was originally enacted. The effect was to give the county school board the authority to tax for the "public school system" which includes high schools as well as elementary schools. This authority was continued in § 111-724, O.C.L.A., and is presently contained in ORS 333.370. Chapter 246, Oregon Laws 1933, made other changes. Section 1 provided that there would be only two classes of school districts, known as city school districts and county school districts (now contained in ORS 333.010). Section 2 provided that all territory of the county not included in a city school district shall constitute a county school district (now contained in ORS 333.040). Section 3 provided, among other things, that the property of all union high school districts lying wholly within the county school district shall become the property of the latter and be subject to its control (now contained in ORS 333.140). The effect of these amendments was to include in the county unit all union high schools lying wholly within the county school districts. However, § 21 of the Act allowed an exception which provided in part as follows:

"Any union high school district that includes a city school district or that includes territory in more than one county shall not be disturbed by this act. No tax of a county school district for high school purposes shall be levied upon property within such union high school district. * * *"

At the time the 1933 legislation went into effect, the Klamath Union High School District was in existence and contained within its boundaries a city school district, being the Klamath Falls City School District. It thus came within the exception provided by § 21 and it did not become a part of the county unit. The Klamath Union High School District contained territory lying outside the included city school district, but since its organization was not "disturbed" (§ 21, supra) by the 1933 legislation it is, in effect, superimposed upon a portion of the county school district whose boundaries are otherwise contiguous with those of the city school district in this area. It is this territory, lying both within the county school district and the union high school district, that is the "overlap" area mentioned in your letter. Since § 21 (now ORS 333.050) also provided that "No tax of a county school district for high school purposes shall be levied upon property within such union high school district * * *," it appears evident that the Klamath County School District would be prohibited from levying a serial tax for high school purposes in the "overlap" area and accordingly we answer your first question in the negative.

Both the Klamath Union High School District and the Klamath County School District now operate high schools and both are authorized by law to levy taxes for the acquisition and support of such schools. ORS 280.040 to 280.140, 333.370, 335.445. The union high school district is authorized to levy a tax for such purposes on all assessable property in its district. ORS 335.445. The county school district, as has been noted above, does not have the power to levy a tax for such purposes on that property in its district which is also within the union high school district, although it otherwise has the power to tax all property in its district for public school purposes, including high school purposes. It does not appear that this prohibition against the county school district levying a tax in the "overlap" area is an exemption, as that term is generally understood in tax law, but rather it is a denial of the taxing power for certain purposes on a portion of the territory within the political subdivision itself. This is not an ordinary situation and raises a constitutional question. Article I, § 32, Oregon Constitution, provides in part:

"* * * all taxation shall be uniform on the same class of subjects within the territorial limits of the authority levying the tax."

If the Klamath County School District should levy a tax for high school purposes on less than all of its territory,

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the question is presented as to whether such a tax is "uniform" within the meaning of the Constitution. There are a number of decisions construing this constitutional provision but we are not aware of a case decisive of this particular factual situation. Our view of the situation, however, is that the statutes involved have, in effect, created within the Klamath County School District a special taxing unit or district for levying high school taxes. The legislature can validly provide for such special taxing districts and the boundaries thereof need not be coterminous with the political subdivision within which they exist. As the rule is stated in 1 Cooley, Taxation, 4th ed., § 85:

"The legislature has power to create a special taxing district, for the purpose of making local improvements or the like, and its boundaries need not coincide with the boundaries of counties, townships or municipalities:"

The proposition is further amplified by the same author in § 320, where it is stated:

"The purpose of creating special tax districts is to make taxes for certain purposes equal and uniform. To require all property or all persons in a county or district to be taxed for improvements of a local character may produce the very inequality which is forbidden by state constitutions; and hence the creation of taxing districts for such improvements, so as to place the burden on those specially benefited, creates equality and uniformity rather than destroys it."

Special assessments for local improvements are sustained on the theory that by the proposed improvement a particular part of the community will be specially benefited because of its location with reference to the place where the funds will be expended and such an assessment is not in conflict with Article I, § 32, Oregon Constitution. King v. City of Portland, (1900) 38 Or. 402, 63 P. 2. It is therefore our opinion that the Klamath County School District has authority to levy a tax for high school purposes on property within its district except that contained in the "overlap" area and accordingly we answer your second question in the affirmative.

The voters in the "overlap" area will receive no benefit from the proceeds of such a tax nor are they obliged to share the burden thereof, Under the view that a special taxing district has been created, they would not be residents of such a district. It does not otherwise appear that they would have any legal interest whatsoever in the outcome of such a tax election. Text authority indictates generally that the right to vote in special tax district elections is governed by local laws. 3 Cooley, Taxation, 4th ed., § 1021. We are not aware of any local laws specifically prescribing the qualifications of voters in such a special tax unit and there appears to be a dearth of case authority applicable to this situation. Because of the lack of interest mentioned, however, we are of the opinion that the constitutional rights of the voters in the "overlap" area would not be violated if they were not allowed to vote under the provisions of Article II, § 11, Oregon Constitution (tax and indebtedness limitation). So also, we are of the opinion that such voters are not the "electors of a subdivision voting" as set forth in ORS 280.060 which provides for an election to authorize the serial levy. For these reasons it is our view that your third question should be answered in the negative.

ROBERT Y. THORNTON,

Attorney General,

By Loren H. Russell, Assistant.