Oregon Advisory Opinions July 16, 1947: OAG 47-145 (July 16, 1947)
Collection: Oregon Attorney General Opinions
Docket: OAG 47-145
Date: July 16, 1947
Advisory Opinion Text
OAG 47-145.
Omission to state time of closing election is immaterial in notice of election for consolidation of certain school districts.
District boundary board has no authority to declare consolidation election invalid. Its canvass of votes is quantitative and not qualitative.
Dear Sir: In compliance with your request for our opinion as to the legality of an election for the consolidation of four school districts of the third class in Lane county, we have reviewed the transcript of proceedings and certain comments of interested parties. Our conclusions are the following:
The notices of election were legally sufficient and were posted as required by law. They properly stated the date of the meeting, including the time of beginning; and because of the question to be voted upon, their omission to state the time of closing the election was proper: section 111-832, O. C. L. A. In an election for consolidation of school districts the election chairman should not declare the voting closed nor should the vote be counted until "all legally qualified voters have voted, if they so desire": section 111-832, supra.
The district boundary board canvassed the votes and found that all four dis-
tricts had returned affirmative majorities for consolidation. The board and the county school superintendent should then have proceeded as directed by section 111-834, O. C. L. A.
It is not stated in the letter of the county school superintendent to you, regarding this election, that the chairman and tellers or judges of the election and the clerks of the respective districts failed to discharge their duties in connection with the election. The presumption of law is in favor of the regularity of their official acts.
It is our opinion that the district boundary board can not declare an election invalid. The board is charged with the duty of canvassing the vote and announcing the result of the election; and this does not mean challenging the voters after they have cast their ballots. The canvass is quantitative and not qualitative. The Supreme Court of this state, with reference to the duty of the district boundary board in regard to an election for consolidation, said in School District No. I v. School District No. 45, 148 Or. 554, 574:
"* * * No discretion is vested in the said board in that respect. To consolidate districts when no such returns of election have been made is illegal. It would be equally illegal to refuse to consolidate if returns were made showing a majority in each district in favor of such consolidation; or to refuse to declare the consolidation defeated if one of the districts be shown to have registered less than a majority in favor thereof."
To declare invalid the election held in any of the four districts is a judicial determination which can be made only by a court in an appropriate proceeding. An administrative board can not pass upon the legality of the acts of certain electors or determine to what extent, if any, those acts affected the result of the election: Opinions of the Attorney General, 1930-1932, page 333; Opinions of the Attorney General, 1938-1940, page 38. Power not granted by law to the district boundary board does not exist: School District v. Palmer, 41 Or. 485, 488; Nicklaus v. Goodspeed. 56 Or. 184, 187. See also 29 C. J. S., Elections, section 237, reading in part as follows:
"It is a common error for a canvassing board to overestimate its powers, but, since such a board is ordinarily a creation of constitution or statute, it may be stated generally that it has such powers and duties, and only such, as are conferred by the constitution or statute creating it, . . . Unless authorized by constitutional or statutory provision, they have no power to go behind the returns and ascertain the qualifications of the voters or otherwise inquire into the regularity of the election. Fraud, bribery, violence or other matters affecting the regularity of the election are to be passed on by the proper tribunal and not by the board of canvassers. The canvassers are not authorized to determine the legality or illegality of the votes cast at the election."