Oregon Advisory Opinions September 08, 1960: OAG 60-121 (September 8, 1960)

Oregon Attorney General Opinions

1960.

OAG 60-121.

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You have inquired as to the proper interpretation to be placed on ORS 329.730 (1) since its amendment by the 1959 legislative session. You indicate that three different types of petitions have been filed with the district boundary board seeking changes of boundary or removal of territory from one district and its annexation to the other. Prefacing your specific inquiries concerning the validity of the three petitions, you state in part:

"It appears to me that the entire question of the validity of the petitions hinges on the effect to be given to the 1959 amendment of ORS 329.730 (1). Prior to the amendment, the method of changing the boundaries of districts so as to remove an area in one district to another seems to have been that provided in the second sentence of the present ORS 329.730 (1). Petition No. 2, described above, seems to have been drawn under that provision.

"The addition in 1959 of the procedure described, beginning with the third sentence of the statute, has apparently prompted the drawing and submission of Petition No. 1.

"The question is whether the two provisions are alternative and can be used indiscriminately, or whether the 'three interested voters' type of petition can now be used only for actual and minor boundary changes, and the 'all resident land owners' type must be used for withdrawing areas of considerable size and annexing them to another district, in which latter case approving action must be taken by the county committee for the re-ORGAnization of school districts, before the District Boundary Board has jurisdiction to act."

ORS 329.730 (1) before its recent amendment read as follows:

"The district boundary board may establish new districts on petition of three legal voters of a proposed new district. Upon petition of at least three legal voters interested , the boundary board may change, divide or abolish the districts of its county." (Emphasis supplied)

The foregoing section was amended by chapter 518, Oregon Laws 1959, but the only change was the addition of the following language:

"Upon petition of all the resident property owners of an area which is both within a school district and also contiguous to another school district, the district boundary board, except where prohibited by ORS

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333.050, upon approval of the change in boundaries by the county committee for the reORGAnization of school districts as provided in ORS 330.645 may withdraw the area from the school district in which it is then located and annex the area to the other contiguous school district. For the purposes of ORS 330.645, a change of boundaries upon a petition of property owners as provided in this subsection shall be deemed to be under a procedure existing prior to August 20, 1957." (Emphasis supplied)

In Rieger v. Harrington, (1922) 102 Or. 603, 613, 203 P. 576, the court said:

"By amending that statute, the legislature demonstrated an intent to change the pre-existing law, and the presumption must be that it was intended to change the meaning of the statute in all the particulars wherein there is a material change in the language of the amended act: * * *" (Emphasis supplied)

By the same token, where there has been no material change in the original statute, but only the addition of new language or new procedures, it must be presumed that the legislature did not intend to abolish or repeal the former procedure. It is a basic rule in the construction of statutes that all laws are presumed to be consistent with each other and it is the duty of courts to harmonize and reconcile laws and to adopt the construction of a statutory provision which harmonizes and reconciles it with other statutory provisions: 50 Am. Jur., Statutes, § 363, p. 367.

As will be noticed from the provisions of ORS 329.730 prior to its amendment, the statute permitted the initiation of a boundary change upon petition of at least "three legal voters interested." The amendment permitted the initiation of a change of boundaries under certain circumstances by petition of "all the resident property owners" of an area. In other words, the amendment did not change or modify the prior existing procedure for boundary change, but merely provided an additional, or alternative, method of petitioning for boundary change by resident property owners as distinguished from legal voters.

Turning to your specific inquries, your first question is:

"(a) Whether Petition No. 1 would be properly before the District Boundary Board for decision on its merits, assuming its prior approval by the re-ORGAnization committee, in view of the fact that non-resident owners of property included in the Petition have not signed it, and some non-resident owners oppose having their lands so removed."

You describe petition No. 1 as referring to an area of land within a school district which is contiguous to School District No. 1; the petition being signed by all the resident property owners of the area seeks to have the area removed from the district and annexed to the adjacent School District No. 1 by the district boundary board. In our opinion, this petition meets the requirement of the latter portion of ORS 329.730 (1) which permits a petition by "all the resident property owners" of an area which is both within a school district and also contiguous to another school district. The fact that the petition "is not signed by owners of land in the area who do not reside within the rural district," does not affect the validity of the petition itself. See School District No. 68 v. Hoskins, (1952) 194 Or. 301, 312, 240 P. (2d) 949. It must be understood, however, that the proposed change in boundaries must receive the prior approval of the county committee for reORGAnization.

Your second question is:

"(b) Whether Petition No. 2 would be properly before the District Boundary Board for decision on its merits, in view of the fact that not all resident property owners of the area included have signed the petition, and some actively oppose it; and whether prior approving action of the reORGAnization committee would be a prerequisite in this instance."

You describe the second petition as referring to different lands from the first petition but which lands are also contiguous to School District No. 1. The petition seeks a boundary change so as to annex the area to the latter school district and is signed by three interested legal voters of the rural district.

In response to your second inquiry it is our opinion that petition No. 2 was properly initiated having been signed by three legal voters, above referred to. This office has held in prior opinions that the consent of the reORGAnization committee must be received when such a petition for boundary change is presented to the district boundary board. This result follows by reason of the provisions of the School District ReORGAnization Act, and particularly the provisions of ORS 330.645 and 330.632. See our opinions No. 4982, dated August 19, 1960, and No. 4695, dated December 17, 1959.

Your third inquiry is:

"(c) Whether Petition No. 3 would be properly before the District Boundary Board for decision on its merits, and, if not, what, if any legal procedure is available to accomplish the purpose of the Petition."

You describe the third petition as referring to different lands than the other petitions, but which lands are also contiguous to School District No. 1. The petition seeks to have the area removed

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from the adjacent school district and included in School District No. 1. The petitions are signed by two legal voters of School District No. 1 and are also signed by the "owner of certain lands within the [rural] district, who presently resides in District No. 1 (and has most of his land holdings therein) * * *."

The phrase "legal voters interested" is discussed in Opinions of the Attorney General, 1932-1934, p. 138. Reference was made to the statute relating to petitions for change of school boundaries (which is now ORS 329.730) and it was said:

"The provision in said statute, 'upon petition of three or more legal voters interested', remains unchanged since its enactment by the legislative assembly of 1903. No residence requirements are contained in said provision. Therefore, it is my opinion that the legislature intended to permit any three or more legal voters interested, who reside in either one or more of the districts concerned in an annexation of school districts, to sign such petition."

Applying the foregoing holding, it is our opinion in response to your third inquiry that the petition is properly before the district boundary board if it is signed by three legal voters of either School District No. 1 or of the area that is proposed to be annexed thereto. Hence, if the person referred to as the "owner" of said lands is a "legal voter" of the school district, and the petition contains the names of at least three legal voters of said district, then the petition is legally sufficient. Here again, the consent of the county reORGAnization committee to the proposed boundary change must be secured before the district boundary board may order the change of boundaries.

Your final question is:

"(d) In case Petition No. 1 would be properly before the District Boundary Board, whether action by the Board to remove and annex the area is mandatory upon the Board or discretionary."

If the consent of the county reORGAnization committee is received, the district boundary board may then exercise its discretion to determine whether the proposed boundary change is for the best interests of the district or districts concerned and may act accordingly: Opinion No. 4982 dated August 19, 1960. As stated by the Supreme Court in Magill v. French, (1915) 76 Or. 237, 242, 148 P. 878:

"In the case at bar the authority of the [district boundary] board to make the change does not depend upon the number of persons subscribing to the petition or remonstrance. It can act favorably upon the petition of only three legal voters against the remonstrance of 300, if in its judgment the change should be made. * * *"