Oregon Advisory Opinions August 16, 1948: OAG 48-137 (August 16, 1948)

OAG 48-137.

The district boundary board does not have authority to vacate an order of consolidation after an election has been held.

Dear Sir: Without reviewing the statement of facts, your letter of August 12, 1948, was concerned with the validity of an election held on July 27, 1948, for the purpose of consolidating five school districts with the Junction City school district, which is a school district of the second class. Your primary question is:

"The district boundary board therefore requests your opinion as to whether the elections in all of the school districts concerned are void, due to the fact that it was determined after the elections that there were only forty-seven (47) instead of fifty (50) legal voters of the Junction City School District who signed the petitions for consolidation with each of the outlying school districts named above. * * *"

Section 111-831, O. C. L. A., as amended by chapter 49, Oregon Laws 1943, provides the method and procedure to be followed for consolidation of school districts, as follows:

"Whenever two or more contiguous school districts in this state shall desire to consolidate for the purpose of forming one district, a petition from each of such districts shall be presented to the district boundary board of the county in which the largest district shall be situated, setting forth specifically the districts it is proposed to consolidate. Such petition, if from a district of the first class, must contain the signatures of at least 100 legal school voters; if from a district of the second class, at least 50 legal school voters, and if from a district of the third class, must contain at least five legal school voters, or one-third of the legal voters of districts of any class, and shall request the district boundary board to submit to the legal voters of the several districts, the question of the consolidation of such districts. Upon receiving such petition, the district boundary board shall, within 10 days, notify the district school board of each of the districts designated by the petition, fix the date of and be responsible for the posting of notices for a school meeting in each district to vote upon the question of consolidation of the districts designated in the notice from the district boundary board, which districts shall specifically be designated in the notice for the meeting." (Emphasis supplied)

In order to answer your question it must be determined whether the provision requiring the presentation of a petition with a designated number of legal voters thereon is jurisdictional or only directory.

Since the case of Marsden v. Harlocker, 48 Or. 90, our supreme court has followed the rule that in case of special elections at uncertain times or on particular subjects, all statutory provisions as to proclamations or other means of giving notice are mandatory and must be observed in order to render a vote of the electors participating therein valid. At page 94, it was said:

"* * * Where, however, some local project may be initiated by petition or other means, an election to determine whether such proposition shall be adopted is special, and the electors cannot be presumed to have knowledge of an application of the power which calls for the necessity of exercising the electoral franchise, in which instance a compliance with all the statutory requirements in respect to the performance of the conditions precedent is mandatory in order to validate the election. " (Emphasis supplied)

It is noted that section 111-831, supra, merely provides that "Upon receiving such petition, the district boundary board shall, within 10 days, . . . fix the date of and be responsible for the posting of notices for a school meeting in each district to vote upon the question of consolidation".

Who is to determine whether or not the petitions contain the requisite number of legal voters is not directly stated in the said section. It would seem, however, that since the district boundary board is required to fix the date of election and post notices, it is incumbent upon said board to determine this question as a condition precedent to the election: Marsden v. Harlocker, 48 Or.

90, 96; State v. Hall, 73 Or. 231, 237. However, it is our opinion that such determination by the district boundary board is not conclusive and does not prevent the review of the sufficiency of the petitions by the court, in view of the fact that the presentation of such petition is a jurisdictional requisite.

In 18 Am. Jur., section 102, page 243, it is said:

"A petition is sometimes required to confer jurisdiction on officers to call an election for a special purpose, and where this is the case, the power to order the election is dependent upon the presentation of such a petition as is required by statute, since it is a condition precedent to the exercise of the particular authority conferred upon them. There is no presumption that the signers of a petition are qualified electors, and in the absence of any provision of law to the contrary, the duty of determining whether a petition presented is in accordance with the requirements of law falls upon the officers to whom it is presented and who are to call the election. * * * It does not follow, however, that the finding of such officials is conclusive, and it has been held, further, that the question of the validity of the petition may be raised in certain cases even after an election has been held pursuant thereto. * * *"

In the case of Terrell v. Forest Park Consolidated School District, (Ga.) 165 S. E. 122, it was held that the calling of an election for school bonds by school district trustees was not conclusive adjudication that the petition for election was signed by one-fourth of the registered qualified voters of the district as required by law. The court further held that the requirement that a certain number of registered voters must sign the petition for an election is jurisdictional, and on page 124 it was said:

"* * * If the petition presented to the board of trustees itself shows that the required number of registered and qualified voters have not signed the petition, the non-jurisdictional fact would appear on its face. In such case an order of the board of trustees calling the election would be null and void. That is based upon the same principles that a judgment of any court or quasi judicial body is absolutely void where there is an absence of jurisdictional facts. If the petition on its face shows the required number of registered qualified voters and the board of trustees call the election, and the election is held, the order calling the election and the election itself are prima facie valid and legal and the burden is upon the objectors to show invalidity. Harrell v. Town of Whigham, 141 Ga. 322, 80 S. E. 1010. * * *"

On the other hand, there is always the presumption in favor of the validity of an election. Our court has held that mere irregularities not affecting the result will not be held sufficient reason to overthrow an election. Roesch v. Henry, 54 Or. 230; Links v. Anderson, 86 Or. 508; State v. Bailey, 151 Or. 496.

Municipal bodies, such as a school district, organized in imperfect compliance with a statute under which they could achieve a de jure status, are recognized to be de facto municipal corporations. State ex rel. v. School Dist. No. 23, 179 Or. 441, 456; State ex rel. v. School Dist. No. 9, 148 Or. 273.

In answer to your first question, it is our opinion that the consolidation election is not "void" but merely voidable if action is commenced to contest the validity thereof. Further, that a petition signed by 50 legal school voters in a second-class district prior to an election for consolidation is a jurisdictional requisite and a condition precedent to the holding of an election for consolidation, and that the sufficiency thereof may be contested in a court of law after an election has been held.

Your second question concerns the validity of the consolidation of Lancaster and Junction City school districts. However, you informed us that the Lancaster school district filed a suit in the Circuit Court of the State of Oregon for Lane County on August 3, 1948, under the declaratory judgment act, contesting the validity of the purported consolidation. It is a policy of this office not to render opinions concerning legal propositions involved in a pending suit or action, since the matter will be adjudicated and the court is best qualified to decide the matter.

Your third question was whether the district boundary board has authority to vacate the orders of consolidation which they have made in this matter if, in our opinion, the elections for consolidation are void. This question was answered by an opinion of this office dated July 16, 1947, No. 404, a copy of which we enclose for your reference. The district boundary board can not declare an election invalid. See School Dist. No. 1 v. School Dist. No. 45, 148 Or. 554, 547.