Oregon Advisory Opinions June 10, 1952: OAG 52-67 (June 10, 1952)

Oregon Attorney General Opinions

1952.

OAG 52-67.

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Dear Sir: We have your letter of June 5, 1952, relating to the recall of two directors of school district No. 4, Prairie City, Grant county, Oregon, wherein you state that a recall petition presented to the clerk of the district has been refused recognition by her for the reason that while it substantially complies with the requirements of the school code, it does not satisfy the provisions of Article II, § 18 of the Oregon constitution and chapter 22, Title 81, O.C.L.A. You ask to be advised:

"Is a Recall Petition, circulated to recall a Director of a Second Class School District, governed by Article II Section 18, Oregon Constitution, and Chapter 22, Title 81 O.C.L.A., dealing with the recall of officers, or by 111-1229 et seq. O.C.L.A. as amended?

"If a Recall Petition, as aforesaid, is governed by the provisions of 111-1229 et seq. O.C.L.A. as amended, does such petition satisfy and comply with the provisions of Article II Section 18, Oregon Constitution?"

Article II, § 18 of the Oregon constitution, which was adopted June 1, 1908, provides in part:

"Every public officer in Oregon is subject, as herein provided, to recall by the legal voters of the state or of the electoral district from which he is elected. There may be required 25 per cent, but not more, of the number of electors who voted in his district at the preceding election for justice of the supreme court to file their petition demanding his recall by the people. They shall set forth in said petition the reasons for said demand. * * * On the same ballot at said election shall be printed in not more than 200 words the reasons for demanding the recall of said officer as set forth in the recall petition, and, in not more than 200 words, the officer's justification of his course in his office. * * * The recall petition shall be filed with the officer with whom a petition for nomination to such office should be filed, and the same officer shall order the special election when it is required. * * * Such additional legislation as may aid the operation of this section shall be provided by the legislative assembly, * * *"

In State v. Harris (1914), 74 Or. 573, which concerned the recall of a county judge, the court held that the provisions of the constitutional provisions above stated are self-executing and that no ancillary legislation was necessary. However, notwithstanding the above decision, the question of whether or not Article II, § 18 of the Oregon constitution applied to school district officers remained in doubt. In Barnett, Initiative, Referendum and Recall in Oregon (1915), page 193, the author said:

"It is still uncertain whether school directors can legally be recalled in the absence of supplemental legislation."

See 9 Oregon Law Review, page 502.

In 1917 the legislature enacted chapter 49, Oregon Laws 1917, entitled "An Act declaring school directors subject to recall and providing the method of such recall". This act is presently codified as §§ 111-1229 through 111-1236, O.C.L.A. As originally enacted it applied only to districts of the first class, but by a recent amendment its provisions were made applicable to "every school director" regardless of the particular class of school district: chapter 527, Ore

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gon Laws 1951, amending § 111-1229, O.C.L.A.

It was not until 1933 that a statute applicable to "public officers" generally was enacted, supplementing the constitutional provision relating to recall of officers: Laws of 1933, chapter 381, codified as § 81-2201 et seq.

In Opinions of the Attorney General, 1926-1928, page 168, this office held that the recall provision of the constitution is not self-executing as to school districts of the second and third classes for the reason that "the recall provision of the constitution, when applied to the existing laws, does not furnish the means for carrying its provisions into effect as to officers of school districts of the second and third classes, and as to such officers is not self-executing".

This position was reiterated in Opinions of the Attorney General, 1934-1936, page 279, wherein it was said:

"* * * it is apparent that the said section is not self-executing, for the reason that no means or method of operating it are provided either in said section or by reference to any existing law.

"In the first place, it provides that the recall shall be invoked by a petition of not more than 25 percent of the number of electors who voted in the district of the officer sought to be recalled at the preceding election for justice of the supreme court. In a school district which does not conform to any election precinct, it is impossible to determine the number of electors who voted for justice of the supreme court at the preceding election, and therefore impossible to determine the requisite number of petitioners.

"In the second place, the qualifications of voters at school district elections and general elections are different * * *. There are a number of other reasons why the recall amendment cannot be applied in case of officers of school districts in other than districts of the first class, which it will not be necessary to discuss in this opinion.

See, also, Opinions of the Attorney General, 1920-1922, page 41, holding that directors of an irrigation district can not be recalled.

The foregoing is sufficient to show that as to school districts, and particularly those of the second and third class, Article II, § 18 of the constitution is not self-executing. Therefore the authority and procedure for recall of directors in such school districts exists by reason of legislative enactment which is to be found in § 111-1229, O.C.L.A., as amended by chapter 527, Oregon Laws 1951, and related sections. The validity of this law has not been challenged since its enactment, and it is an established statutory presumption that a statute must be presumed to be constitutional, valid and enforceable.

The statutory procedure for recall of directors of first class school districts had been in operation for 15 years before chapter 381, Oregon Laws of 1933, was enacted (Title 81, chapter 22, O.C.L.A.), which supplemented the constitutional provision relating to recall of public officers, and there is nothing in the later act which indicates that it was intended to supersede or repeal chapter 49, Oregon Laws 1917. It is to be remembered that repeals by implication are not favored in the law: Webber v. Bailey, 151 Or. 488, 493. General and special statutes are to be construed in pari materia and the provisions of both given effect, if possible; however, if there is a conflict the special statute will control over the general one: Sutherland on Statutory Construction, 3rd ed., page 541; Harth v. Phipps, 136 Or. 454, 464.

In response to your inquiry it is our opinion that a petition for the recall of a director of a second class school district is sufficient if it substantially complies with the provisions of § 111-1229 et seq., O.C.L.A., as amended. See Opinions of the Attorney General, 1932-1934, page 672; 1946-1948, page 170, relating to the duty of the clerk in passing upon the sufficiency of a petition for recall.

Specifically, we answer your first question by stating that the recall petition in such districts is governed by § 111-1229 et seq., and not by chapter 22, Title 81, O.C.L.A. See Opinions of the Attorney General, 1946-1948, page 214; 1948-1950, pp. 150, 257.

We answer your second question in the affirmative, for the reason that "there seems to be no conflict between the organic law and the legislative enactment in this regard": Opinions of the Attorney General, 1926-1928, page 437.