Oregon Advisory Opinions April 12, 1956: OAG 56-19 (April 12, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-19.

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You have requested the opinion of this office on questions submitted by the County School Superintendent of Jackson County, by letter addressed to you under date of March 24, 1956. His questions pertain to the use of poll books in school elections, the first of which is as follows:

"Do the provisions of ORS 330.120 cover the requirements for consolidation of elections or do the provisions of Chapter 726, Laws of 1955 apply to such election?"

ORS 330.110 to 330.140 provide the procedure for consolidation of school elections. ORS 330.110 sets forth the requirements for the petition for consolidation and the notices to be given for a school meeting or election on the question of consolidation. ORS 330.120 provides:

"The vote upon consolidation shall be by ballot upon which is written or printed, 'For consolidation---Yes,' 'For consolidation---No.' The chairman of the meeting shall appoint two tellers, who shall receive and count the ballots; provided, that in first class districts, the judges shall be appointed in the manner prescribed by law. The district clerk, or a person authorized by the district school board to act as such, shall keep a poll list and record thereon the name of each person voting upon the question at the meeting before such vote is received by the tellers. After all legally qualified school electors present and desiring to vote have voted, the chairman shall declare the vote closed and the tellers or judges shall count the vote in the presence of the chairman."

ORS 330.130 provides that the district clerk shall keep a tally sheet of the votes counted by the tellers, which tally sheet shall be certified to as correct by the clerk and signed by the chairman and tellers. It further provides that the tally sheet, poll list and ballots shall be

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placed in a sealed envelope by the district clerk who shall endorse thereon the number of the district, etc. Chapter 726, Oregon Laws 1955, amended certain sections and created new provisions with respect to the general election laws of the state. The principal purpose of the Act was to provide, by amendment of certain sections of the general election laws, for the submission by the county clerk to election boards of typewritten lists in duplicate of all the voters in the precinct, which lists constitute the "poll books", and to provide for the signing by each voter of his name in the place provided for the voter's signature in the poll books.

This office has held in the past that school elections are not governed by the general election laws. Thus, in Opinions of the Attorney General, 1948-1950, p. 100, it was held that absentee ballots are not permitted in school elections since school elections are not governed by the general election law. To the same effect see Opinions of the Attorney General, 1948-1950, pp. 255, 257; Breding v. Williams, 37 Or. 433; Dunham v. Hyde, 30 Or. 385.

As previously noted, there is no provision in ORS 330.110 through 330.140, pertaining to school district consolidations, which makes any requirement with respect to the keeping of duplicate poll books by the election officials, or the signing of poll books by the voters. No reference is made in the said sections as to the procedure for elections under the general election laws.

The question of the necessity of following the general election laws in school district elections undoubtedly arose by reason of a provision contained in ORS 331.320, as amended by chapter 386, Oregon Laws 1955. This section provides election procedure generally in all school districts of the first, second and third class and union high school districts. The first subsection provides for the time of the election, the uniformity of ballots and the appointment of judges and clerks of election. Subsection (2) of ORS 331.320, as amended, authorizes the district school board of any such district to divide the district into school election precincts for the holding of elections within the district. It further provides for the appointment of election boards for each precinct and provides that

"* * * Their duties shall, so far as practicable, conform to the election board duties as fixed in the general laws of the State of Oregon. * * *" (Emphasis supplied)

In my opinion the last cited provision does not have the effect of incorporating by reference the entire provisions of chapter 726, Oregon Laws 1955, into the procedure to be followed in school elections. Our supreme court in the case of McKinnon v. Union High School District No. 1 of Baker County, 116 Or. 543, 548, held that reference to a general law contained in a special statute should be construed only to supply regulations of school matters not covered in the Act in which the references are found. In Dunham v. Hyde, 30 Or. 385, it was held that a town charter providing that all laws regulating general elections shall govern elections under the charter does not impose on the town recorder the duty of determining tie votes by lot in town elections, since the charter provided neither that the county recorder shall be substituted for the county clerk in the application of the statute to the town nor that the method of determining ties in county elections shall be adopted instead of the different method prescribed in legislative elections. The court said at page 386:

"* * * But the section referred to is a part of the general laws of the State, providing the time and manner of canvassing the returns and declaring the result of an election for State and County officers, and, since the manner of canvassing the returns and declaring the result of a town election is fully provided for in the charter, it may be well doubted whether the section in question is among the provisions of the general law regulating and governing elections intended to be made a part of the charter by section 21. But, however this may be, the incorporation of the section in the charter would not, it seems to us, extend its scope or operation so as to make it the duty of the recorder, in case of a tie in a city election, to take the same procedure required to be taken by the county clerk in case of a tie in the election of county or precinct officers. To do so would be enlarging by construction the powers and duty of the recorder much beyond the scope of the charter. * * *"

Chapter 726, supra, amends ORS 250.310 so as to provide that the county clerk shall transmit to election boards typewritten lists in duplicate of all voters in the precinct, which shall constitute the poll books, and further sets forth the form of such books including a space for voter's signature. The section further provides for the administration of the oath of the judges "in each of the poll books". It further provides for the subscribing of an oath in the poll books by the chairman and each judge and clerk of election.

It is obvious that the above cited section pertains not only to "election board duties" but also to duties of the county clerk, which could not as a practical matter be applied to school elections.

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Indeed, ORS 331.030 provides in part that

" On request of the district school clerk, the county clerk shall prepare a list or lists of names and addresses of the registered voters of the precinct or precincts that are within the boundaries of the school district or overlap the same, who were registered at least 30 days prior to such meeting or election. * * *" (Emphasis supplied)

In other words, in school elections the voters lists or poll book is prepared only at the "request" of the district clerk, whereas under chapter 726, supra, it is the express duty of the county clerk to provide the poll books to the precinct election officers. Section 2 of chapter 726, supra, amends ORS 250.640 so as to provide for the numbering of the ballots and for requirements of voters desiring to vote. Specifically, this section requires the person desiring to vote to sign his name with indelible pencil or pen "in both of the duplicate poll books" in the space provided therein for the voter's signature, which will serve to attest to his residence. The further provisions of the section set forth the duties of the clerks with respect to the poll book and the delivery of the ballots.

In my opinion the foregoing provisions cannot be applied to school district elections for the reason that there is no requirement in the school law providing for duplicate poll books nor is there any provision specifically requiring voters to affix their signature in the poll books.

Accordingly, it is my opinion your first question should be answered in the negative.

The next question is:

"Do the provisions of Chapter 726, Laws of 1955. apply to the following: (a) Elections to establish a new tax base; (b) Rural School district elections to exceed the 6% limitation."

In connection with that question, it is also asked whether or not the above chapter applies to annual school meetings and other special school district elections. It is noticed that the provision in ORS 331.320 directing that the duties of election boards "shall, so far as practicable, conform to the election board duties as fixed in the general laws of the State of Oregon", is contained in that portion of the section pertaining to school districts which subdivides the district into school election precincts. In determining the applicability of the foregoing provision, it is to be remembered that in many school districts the manner in which an election is conducted is somewhat informal. Thus, in Zeek v. Union School District No. 5, 188 Or. 45, the court held that an informal blank ballot used in election in a second class district on increasing its tax levy was sufficient, saying at page 60,

"* * * School districts of the second and third classes do not, as a rule, use printed ballots in voting upon questions at their annual or special meetings * * *." Citing Opinions of the Attorney General, 1920-1922, p. 225; § 110-112, O.C.L.A. (now ORS 310.390 (2)).

It has been held that the failure to appoint tellers or to keep a tally sheet in a school district consolidation election did not void the election: Opinions of the Attorney General, 1924-1926, p. 638. In Links v. Anderson, 86 Or. 508, 520, it was held that an omission to furnish the election officers with suitable poll books, tally sheets and lists of voters did not invalidate the election, the court remarking that "The poll-books, tally sheets, and the list of voters are for the convenience of the election officers."

Without further extending this opinion, we note that ORS 328.560 refers to an election to establish a new base "at a regularly called meeting" and sets forth the procedure for the conduct of such meeting. The procedure for rural school districts to exceed the six percent limitation is found in ORS 334.210. The taxing power of "school meetings" is prescribed in ORS 328.535. We mention these sections for the purpose of pointing out that there still remain certain distinctions in the school law between a "school meeting" and an "election". Compare State of Oregon v. McKee, 20 Or. 120; Vaughn v. School District Thirty-one, 27 Or. 57; Opinions of the Attorney General, 1950-1952, pp. 361, 362. It is obvious that it would not be "practicable" to require the election boards for such school meetings to conform to the election board duties "as fixed in the general laws of the State of Oregon".

Accordingly, it is my opinion your second question should likewise be answered in the negative.