Oregon Advisory Opinions May 16, 1956: OAG 56-29 (May 16, 1956)

Oregon Attorney General Opinions

1956.

OAG 56-29.

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You have requested an opinion of this office on several questions pertaining to certain election procedures, the first of which is, "whether the provisions of Chapter 726, Oregon Laws 1955, apply to elections conducted by irrigation districts, school districts and similar subdivisions of the state of Oregon."

An opinion of this office, No. 3348, dated April 12, 1956, was furnished to the Honorable Rex Putnam, Superintendent of Public Instruction; this opinion deals with applicability of chapter 726 to school elections, holding generally that such elections are not governed thereby. A copy of said opinion is enclosed herewith.

As to said chapter 726 being applicable to elections conducted by irrigation districts, the following provisions of ORS chapter 545 are to be noted.

ORS 545.002 provides in part:

"* * * 'elector' includes every person over the age of 21 years, whether a resident of the district or state or not, who is a bona fide owner of two acres or more of land situated within and assessed by the district * * * only one vote shall be allowed in behalf of all the owners under each multiple ownership. * * *"

ORS 545.012 (1) provides in part:

"The election shall be conducted, as nearly as practicable, in accordance with the general election laws of the state, except that no particular form of ballot shall be required, and the provisions of the election laws as to the form of ballot and as to the nomination of candidates shall not apply. * * *"

ORS 545.032 provides in part:

"* * * The ballots, together with the other certificate and tally papers to which it is attached and a poll list of the voters voting at the election, shall be sealed by the chairman * * *."

It is seen that the qualifications of electors in irrigation districts differ radically from qualifications of voters generally for general and other elections. Ownership of land is the primary requisite; not even residence in Oregon is required; there is no relation between electors qualified to vote in irrigation district elections and the registration of electors pursuant to ORS 247.030.

There is no provision in ORS chapter 545 requiring the keeping of duplicate poll books by the election officials or the signing of poll books by the voters. The poll books prepared and furnished to election boards by county clerks pursuant to ORS 250.310 constitute lists of registered voters of each precinct; there is no provision in ORS chapter 545 that a voters' list of any sort be obtained from or furnished by county clerks; neither would their files of registered voters in any way determine eligibility of electors in irrigation district elections.

In opinion No. 3348, at page 4, the rule was set out 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 my opinion the same rule is applicable to ORS chapter 545, a special Act dealing with irrigation districts. It is therefore my opinion that chapter 726, Oregon Laws 1955, does not apply to irrigation districts.

You next ask whether the provisions of ORS 328.215, pertaining to notice of bond elections in school districts, and particularly the language "'a newspaper published and of general circulation in the district'", requires that the newspaper must be physically published in the territorial extent of the particular school district, or does it require that such newspaper be of general circulation that is "disseminated in the area involved in which newspaper notice would be a condition precedent to a valid election"; further, whether the Medford Mail Tribune, which is a newspaper of general circulation in Jackson County and is actually printed in Medford, Oregon, "Would * * * be deemed one published and of general circulation in a school district which is outside the territorial limits of the city of Medford?"

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The question presented is extensively considered and discussed in Opinions of the Attorney General, 1946-1948, p. 117. The case of Polzin v. Rand, McNally & Co., 250 Ill. 561, cited therein, involved interpretation of the word "published" as used in a statute which required school boards to advertise for bids by publishing in a newspaper of general circulation published in the district. The court held in part:

"* * * If it had been intended that publication in a newspaper of 'general circulation' in the district should be a compliance with the law, the legislature would not have required that the publication be made not only in a newspaper of general circulation in the district, but also in a newspaper 'published' in the district. By the word 'published' is clearly meant the place where the newspaper is first issued or printed, to be sent out by mail or otherwise. * * *"

ORS 193.030 provides:

"Legal advertisements and notices for irrigation districts, school districts and road districts, the publication of which is now required by law, shall be published in a newspaper within the district; and if there is no newspaper in the district, in the newspaper nearest to the district affected."

ORS 328.215 provides in part:

"The school district bond election notice shall be published in at least two issues of a newspaper published and of general circulation in the district. * * * If there is no newspaper published in the district and of general circulation therein, the notice shall be posted for 15 days prior to such election * * *." (Emphasis supplied)

ORS 193.030 is a general statute pertaining to publishing notice; ORS 328.215 is a later special statute relating thereto and its requirements must be followed. The legislature specifically requires that, unless such newspaper is published in the district, notice shall be accomplished by posting. It is therefore my opinion that unless a newspaper of general circulation in a school district scheduling a bond election is also published in such district, effective notice cannot be given by publication and the same must be given by posting: See Witham v. McNutt, 186 Or. 668.

In those instances where the notice required by ORS 328.215 is given by posting, you asked the following question:

"* * * Is the requirement of the statute on posting satisfied if the notices are placed appropriately 15 days before an election, or is it necessary that the parties posting such notices have the responsibility to make sure that they remain posted for the full 15 day period, irrespective of acts of God or removal by parties unknown."

Merrill on Notice, vol. 2, p. 99, sets out the following general rules:

"In the absence of a particular command, the effect of a notification, once posted, is not defeated by the fact that thereafter it becomes illegible from the action of the weather [citing Latourette v. Kruse, 139 Or. 422] or disappears [citing Marshall v. Cardinell, 46 Or. 410]. At least it is not necessary for the notifier to maintain a watch and ward over the document to see that it remains in place [citing People v. Shaw, 253 Ill. 597]. If he knows of its removal, a different problem is presented [citing Nichols v. Levy, 55 Nev. 310]. * * *

"The express command of competent authority, legislative or otherwise, may override the general principle that notification is effective as soon as the placard is set up, requiring, instead, that it remain in position for some definite time [citing State, ex rel. Attorney General v. Pensacola & A. R. Co., 27 Fla. 403 (1891), ('keep continuously posted'); Kraus v. Murphy, 38 Minn. 422 (1888), ('kept conspicuously posted')]. The hardships of such an exaction usually are abated by a presumption that the document remained in position where there is no evidence of its absence, * * *."

The command of the statute, "the notice shall be posted for 15 days prior to such election", appears to be similar to a requirement that such notice be posted and "kept continuously posted" for the statutory period; at least, the requirement is more strict than a provision that such notices be posted "not less than 15 days before any such election". Under the general rules cited, if the notifier is informed that any such posted notices have been removed or destroyed, he would be under an affirmative duty to replace the same.

Answering your question, it is my opinion that the posting requirement of ORS 328.215 is not fully satisfied merely by appropriately posting the notices 15 days before election; neither is the notifier required to maintain a watch or guard over the posted notices. Assuming that notices are duly posted 15 days prior to a scheduled school bond election, but that the same are removed or destroyed at some time during the ensuing 15 days without knowledge thereof on the part of the notifier, it is my opinion that the effect on the validity of such election would be governed by the general rule announced in Witham v. McNutt, supra, to the effect that substantial compliance is sufficient if it is reasonably probable that the irregularities did not affect the outcome.