Oregon Advisory Opinions January 29, 1968: OAG 68-13 (January 29, 1968)

OAG 68-13.

School district boundary changes made through procedure provided by subsection (5) of ORS 330.101 require that petition for change contain signatures of 100 percent of owners of record or contract purchasers and 100 percent of qualified voters of the territory described in the petition, regardless of whether such territory is publicly or privately owned.

ORS 330.090 prohibits boundary changes which will render territory of a district noncontiguous.

You have written us requesting our opinion on certain matters relating to school district boundary changes. The facts giving rise to your request are somewhat lengthy, and since they are set out in your letter, we quote therefrom as follows:

"On September 20, 1967, the Deschutes County Boundary Board made three orders transferring territory of Redmond School District No. 2J to Bend School District No. 1. The action of the boundary board was initiated by three petitions, which I shall hereafter refer to as the Mayer petition, the Curl petition, and the Schrock petition. Remonstrances against the boundary board orders have been made by the Redmond School Board to the State Board of Education pursuant to the provisions of ORS 330.101, as amended by Chapter 313, Oregon Laws 1967.

"Each petition was purportedly signed by 100 percent of the qualified voters and 100 percent of the owners or contract purchasers of the private property described in the petitions. However, the property described in the Mayer petition contained an area of approximately 160 acres of federally owned, tax-exempt land and it is necessary that this land be included in order to render the total area described contiguous to the Bend district. It is conceded that there are no qualified voters residing on the federal property.

"The Curl petition did not originally describe any publicly owned lands, but the boundary board, on its own motion, added an area of state-owned property to the property originally described in the petition and with this change entered an order transferring the enlarged area. The territory originally described in the Curl petition is contiguous to a portion of the Bend district lying to the north. As with the federal property, there are no qualified voters residing on the state-owned lands which were added to the area originally described in the petition.

"The property described in the Schrock petition is privately owned, but at the time of filing was not contiguous to the Bend school district. However, the state-owned land mentioned above is contiguous to both the Bend district and the territory described in the Schrock petition; therefore, if the boundary board order on the Curl petition is effective to make the state property a part of the Bend district, it then renders the property described in the Schrock petition contiguous to the Bend district.

"Subsection (5) of ORS 330.101 allows the boundary board to make boundary changes without a vote of the electors upon a petition of 100 percent of the qualified voters and 100 percent of the owners or contract purchasers of real property of the area involved. The Mayer and Curl petitions were not signed by anyone acting on behalf of the federal or state governments with respect to the ownership of the public lands involved. Nevertheless, the boundary board proceeded in each case on the assumption that subsection (5) of ORS 330.101 was applicable, and did not allow remonstrances to be filed or an election to be held on the question of the change.

"Since there were no signers of the Mayer and Curl petitions on behalf of ownership of the public lands, it is contended by the Redmond school district that the voters of that district have the right to remonstrate against the boundary changes and to vote upon the question in accordance with the provisions of subsections (2) and (3) of ORS 330.101. It is maintained that since the statutory procedures were not followed, the orders entered on these petitions are ineffective and do not result in the transfer of any territory to the Bend district. Because of this, it is contended that the state-owned property added to the Curl petition has not become a part of the Bend school district and therefore the property described in the Schrock petition is not contiguous to the Bend district and the purported order making this property a part of the Bend district is ineffective and void. We would appreciate your opinion on these matters.

"A question also arises concerning the authority of the State Board of Education upon review of this matter. In particular, subsection (5) of ORS 330.101 provides that the State Board may either 'confirm or reject' the action of the boundary board, and it would therefore appear that there would be no authority to change or modify the boundary board order."

Recognizing that public officers must find sanction for their acts in the law it then becomes evident that the boundary board can make boundary changes only in accordance with the procedures provided by statute. The applicable statute in this case is ORS 330.090, as amended by chapter 298, Oregon Laws 1967, which provides in part as follows:

"(2) In the manner provided in ORS 330.090 to 330.107, 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 boundary change may merge smaller districts into larger districts or alter the boundaries of common or union high school districts, if it finds that the proposed change:

"(a) Will have no substantial adverse effect upon the ability of the districts affected to provide the educational program required by law.

"(b) Will result in improvement of the educational facilities available to the children in the area affected by the proposed change or will result in substantial operating economies in the districts affected.

"(c) Is not made solely for tax advantages to the property owners in the district or area affected by the proposed change.

"(d) Is not likely to adversely affect any contemplated reorganization under ORS 330.505 to 330.780.

"(e) Will not result in territory of a district becoming noncontiguous. " (Emphasis supplied)

"(1) Before the proposed change is made, the district boundary board shall give notice in the manner provided in ORS 331.010 of the proposed change and the proposals and the session of the board at which they will be considered. If no remonstrance is submitted requiring an election as provided in subsection (2) of this section and if the board makes the findings set forth in subsection (2) of ORS 330.090, the board shall declare that the change and proposals shall become effective the following May 31.

"(2) If a remonstrance signed by at least five percent or at least 500, whichever is less, of the qualified voters in a school district or area affected by the proposed change is filed with the district boundary board within 20 days after the date set to consider the proposed change and the proposals and if the board makes the findings set forth in subsection (2) of ORS 330.090, the board shall submit the question of the proposed change and the proposals to the qualified voters of each affected district or area from which a remonstrance was filed as nearly as possible in the manner prescribed for annual school elections with the district boundary board acting in the place of the local school districts. Separate elections shall be held in sequence, commencing with the least populous district or area and progressing in order of population to the most populous district or area. If the majority of votes in each election favor the change and the proposals, an election shall be held in the next most populous district or area. The boundary board shall give notice of each election in the manner provided in ORS 331.010.

"(3) If the majority of votes cast in any affected district or area oppose the change and the proposals, the change and the proposals shall be defeated, and the same or a substantially similar change combined with substantially similar proposals shall not be considered until 12 months have elapsed

from the date of the election at which the change and the proposals were defeated. If the vote is favorable in all remonstrating districts or areas, the district boundary board shall declare the change and proposals effective the May 31 following without further elections.

"(5) Notwithstanding the provisions of subsections (1), (2) and (3) of this section, if a petition signed by 100 percent of the owners of record or the contract purchasers of real property and 100 percent of the qualified voters of an area requesting that the area be annexed to another school district to which it is contiguous is presented to the district boundary board, the board, if it makes the findings set forth in subsection (2) of ORS 330.090, shall order the change to be made effective on the following May 31, providing a remonstrance signed by the school boards of any affected district or by the original petitioners is not presented to the State Board of Education within 30 days of the date of the order. If such a remonstrance is presented to the State Board of Education, the board shall set a time for a hearing, give notice of the same, and hear the case in the area affected. If the board deems it advisable, the board may appoint a hearings officer to hold the hearing. After considering the testimony, the board shall confirm or reject the action of the boundary board and such determination shall be final."

However, subsection (5) of ORS 330.101, supra, provides for an exception to this veto authority of the voters. The condition of this exception is that the petition for a boundary change shall be signed by 100 percent of the owners of record or the contract purchasers of real property and 100 percent of the qualified voters of the area involved. When the petition complies with this requirement, no remonstrance or vote is available to the electorate. As you indicated in your letter, one question is whether this subsection is applicable to the proceedings of the boundary board in connection with the Mayer and the Curl petitions.

At the outset it should be noted that federally owned lands over which the Federal Government has not retained exclusive jurisdiction may properly be included within the boundaries of municipal subdivisions. See Day v. Salem, (1913) 65 Or. 114, 131 P. 1028; City of Anchorage v. Akers, (D.C. Alaska 1951) 100 F. Supp. 2; Opinions of the Attorney General, 1948-1950, p. 458; 1950-1952, p. 6. It is our understanding that exclusive jurisdiction has not been retained by the Federal Government in the case of the lands included in the Mayer petition. These lands have apparently been previously included in the Redmond school district and may, by proper procedure, be transferred to the Bend school district.

It is urged in support of the boundary board action on the Mayer petition that the legislature did not intend the doing of a useless or impossible thing by requiring the Federal Government to join in the petition in order to make applicable the provisions of ORS 330.101 (5), supra. In support of this position it must be conceded that the Federal Government has little interest one way or another in a school district boundary arrangement, since it pays no tax and cannot cast a vote in a local school election in any matter, including a question of boundary change. On this basis it is argued that federal lands may be included in a petition which otherwise complies with the 100 percent requirements of ORS 330.101 (5), supra, and that it is not necessary to obtain the signature of anyone acting on behalf of the Federal Government with respect to the ownership of the federal lands.

We would find this argument more persuasive if signing by 100 percent of the voters and owners or contract purchasers was necessary in every boundary change. This is not the case, as the above statutes indicate. The federal lands may be transferred by appropriate proceedings, either upon petition of three persons or upon the boundary board's own motion as provided in ORS 330.090 (2), supra. But with respect to the boundary action which must be based solely on a certain kind of petition, it is stated in 2 McQuillin, Municipal Corporations (1966 rev.), § 7.30, p. 425:

"* * * an adequate petition is commonly regarded as an essential procedural requirefent, without which no jurisdiction is conferred on the tribunal empowered to act. In other words, a petition sufficient according to the requirements of the statutes is jurisdictional. * * *" (Emphasis supplied)

In order for the Mayer petition to be "sufficient according to * * * the statutes" it must be "signed by 100 percent of the owners of record or the contract purchasers of real property and

100 percent of the qualified voters of an area requesting that the area be annexed to another school district to which it is contiguous." (Emphasis supplied) ORS 330.101 (5), supra. As we construe this provision, it is applicable only when the petition contains the specified signatures corresponding to the area described in the petition. Thus, in the absence of the required signatures, there is no statutory authority for such a petition to include other lands, either private or publicly owned, and we can perceive no basis for implying such authority.

Accordingly, it is our opinion that the inclusion of the federal lands in the Mayer petition renders subsection (5) of ORS 330.101, supra, inapplicable, and the action of the boundary board on the petition is subject to the remonstrance and election procedures of subsections (2) and (3) thereof. Since the boundary board did not have jurisdiction to enter the order, such order should be rescinded and proper proceedings undertaken to effect a valid transfer.

With respect to the Curl petition, the same considerations are applicable in the case of state lands as have been discussed above with reference to federal lands. It is apparent that subsection (5) of ORS 330.101, supra, is not applicable to transfer of the area as enlarged by the boundary board, since such action is not supported by the required signatures on the petition. Also, we are not aware of any authority on the part of the boundary board to change the territorial description of the Curl petition in the manner in which it apparently did. The petitioners have signed a petition which requests a boundary change encompassing certain specified territory and they have a right to have that petition acted upon in the form in which it was presented. In its original form it appears that ORS 330.101 (5), supra, would be applicable. The boundary board should rescind its order transferring the enlarged territory and proceed appropriately to consider the Curl petition in the form in which it was originally presented. If, on its own motion, the board further wishes to transfer the state property, it may proceed in accordance with the requirements of subsections (1), (2) and (3) of ORS 330.101, supra.

With respect to the Schrock petition, it appears that the above mentioned state property is contiguous to the Bend school district and contiguous to the territory described in the petition, but the latter two areas are not contiguous to each other. Thus, it was necessary that the state property be included in the Bend school district in order to render the Schrock territory contiguous to the district. This apparently was the reason the boundary board added the state property to that originally described in the Curl petition.

As we have observed, the boundary board order in the matter of the Curl petition was ineffective to transfer the state property to the Bend school district. The form of the order is not before us, but even if this boundary board order could be considered as a separate action on the board's own motion to transfer the state property, there nevertheless has not been compliance with the mandatory procedural requirements of subsections (2) and (3) of ORS 330.101, supra, and the order would be ineffective as to the state property for this reason. Accordingly, the order transferring the territory described in the Schrock petition to the Bend school district is unauthorized since in contravenes the provisions of ORS 330.090 (2)(e), supra, which requires that the boundary change shall not result in territory of a district becoming noncontiguous. This order should be rescinded.

You have asked further whether the State Board of Education would have any authority to change or modify the orders entered by the Deschutes County Boundary Board. Subsection (5) of ORS 330.101, supra, provides that the state board shall "confirm or reject" the action of the boundary board. It seems evident from this language that the state board may only approve the action of the boundary board in its entirety or disapprove such action. There is no authority to change or modify. In the present case, of course, there would appear to be no basis for approval, change or modification as the boundary board orders on all three petitions were unauthorized.