Oregon Advisory Opinions March 13, 1963: OAG 63-37 (March 13, 1963)

Oregon Attorney General Opinions

1963.

OAG 63-37.

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You have asked for our interpretation of a problem relating to an election in Union High School District No. 2, Harney County. It appears that on March 19, 1962, pursuant to provisions of ORS 335.495 and 335.500 an election was called for the purpose of lengthening the high school courses to include a seventh and eighth grade. Your letter further states.

"At the election of March 19, 1962, pursuant to the above statute, it was determined that there were seven elementary school districts involved; and all of the formality for the election was properly followed pursuant to ORS 335.495. At the election the following votes were cast in the respective districts:

"It will be noted from the above that the measure carried in Burns Dist. No. 1, Hines Dist. No. 30, and Frenchglen Dist. No. 16, but was defeated in Riley Dist. No. 10 and Double 0 Dist. No. 28. No votes whatever were cast in Lawen Dist. No. 18 for the reason that at the time of said election there were no registered voters whomsoever within said district, and in Sodhouse Dist. No. 32 there was only one registered voter, and he failed to vote. Thus, we are confronted with the problem of a vote being cast in only five of the seven districts. It therefore resolves itself to an interpretation of the provisions of ORS 335.500.

"There is no question that the measure carried in the Union High School District itself. The sole question arises as to whether or not 'A MAJORITY OF VOTES CAST IN A MAJORITY OF ALL DISTRICTS VOTING ARE FOR THE PROPOSAL."

You further state that in your opinion, since no votes were cast in the two districts involved, they should be eliminated, leaving only five districts which did cast votes to determine the issue and therefore three of the five would be sufficient to approve the procedure. Your specific question is:

"* * * Under ORS 335.500, what is meant by the words 'and a majority of votes cast in a majority of all districts voting are for the proposal'?"

Under ORS 335.495 a union high school board may, or upon petition of 100 legal voters shall, submit to the legal voters of the district at an annual or special election, the question of lengthening the course of study in the district. The board is to send written notices to the clerks of the affected elementary school districts who shall give notice to the legal voters and the election is held in the elementary school district at the schoolhouse therein or place designated by the elementary school board.

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Under ORS 335.500, upon receipt of the election returns, the school board shall canvass the votes and

"* * * If the board determines that a majority of votes cast in the union high school district, and a majority of votes cast in a majority of all districts voting are for the proposal, it shall declare the proposal carried and certify the result to the district boundary board. * * *"

Under the facts recited there is no question that the first requirement of the statute, namely "that a majority of votes cast in the union high school district" was satisfied. The basic question is whether or not there was a majority of votes cast in a "majority of all districts voting." Normally where there are seven districts participating in such an election there would be no problem in determining a "majority of districts" since there would have to be at least four of the districts voting favorably for the proposal. Compare Union High School District No. 5 v, Stanley, (1949) 185 Or. 531, at p. 547, 202 P. (2d) 509; Opinions of the Attorney General, 1924-1926, p. 637; 1938-1940, p. 317. However, the strict interpretation of the statute comes into play in the instant case where there were no votes whatsoever in two of the districts concerned, and actually only five of the seven districts voting on the question.

We find similar language requiring the majority of all "districts voting" in the statute providing for formation of union high school districts in ORS 335.270 and also in the statute providing an election for dissolution of union high school districts in ORS 335.360. However, we find no case decision interpreting the statutes in so far as it specifically applies to your problem.

In Annotation, 131 A.L.R. 1382, a compilation of various cases is contained therein concerning the basis for computing a majority essential to the adoption of a constitutional or other special proposition submitted to the voters. The general rule is to the effect that unless the law providing for an election declares or implies otherwise, all qualified electors who absent themselves from an election duly called are presumed to assent to the expressed will of those voting. This same rule has been especially adopted where the statute required a majority of "votes cast" or a similar expression. The Oregon Supreme Court followed this rule in State ex rel. Durkheimer v. Grace, (1890) 20 Or. 154, 25 P. 382, which concerned an election to determine the location of a county seat. The question involved was whether or not the law requiring the majority of electors voting thereon meant a majority of all votes cast at the general election or a majority of all votes cast on the question of the location of the county seat. The court held that it was the latter intent and cited cases to the effect that "the assent of those voting on the subject or question was to be presumed by their silence as acquiescing in the action of the majority." (State ex rel. Durkheimer v. Grace, supra, 20 Or. at 163.) This result was followed in Philomath College v. Wyatt, (1893) 27 Or. 390, at p. 453, 31 P. 206, 37 P. 1022; and Wilson v. Wasco County, (1917) 83 Or. 147, 156, 163 P. 317, where the court concluded:

"* * * We are of the opinion that the reason and logic of the controversy are with those courts which hold that the majority of those electors who actually vote upon a measure is controlling. This is in accord with the general spirit of our institutions, wherein the will of the majority as expressed at the polls is supposed to govern. * * *"

It is of some significance that the statute refers to "districts voting" and requires a "majority of votes cast." The word "voter" has been distinguished from the word "elector" in various cases dealing with this problem. See 14 Words and Phrases 328 and 44A Words and Phrases 13. Thus it has been held that the word "voters" as ordinarily used has two meanings---persons who perform the act of voting, and persons who have the qualifications entitling them to vote. Its meaning depends on the connection in which it is used, and is not always equivalent to "electors." Mills v. Hallgren, (1910) 146 Iowa 215, 124 N.W. 1077, 1079. A voter is an elector who exercises his privilege of voting: State ex rel. McCue v. Blaisdell, (1909) 18 N.D. 31, 119 N.W. 360, 363.

Thus it will be seen that voting means the exercise of the right of suffrage under the law for or against a proposition submitted. It would then seem to follow that if there were no votes cast in a school district in an election called under ORS 335.500, a district could not be counted in determining a majority of districts since it would not be a "district voting." Certainly the rules of law above quoted could be applicable to a canvass of votes under ORS 335.500 in determining a "majority of votes cast in the union high school district"; and we know of no valid reason why the same principle should not be applicable in determining the second requirement of the statute, that is, whether or not there was a "majority of votes cast in a majority of all districts voting."

A somewhat analogous situation arose in Opinions of the Attorney General, 1930-1932, p. 585, which concerned the

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proposed dissolution of a union high school district composed of two elementary school districts in one of which districts there was no one living. The opinion concluded that an election should be held in the union high school district as required by the statute and concluded:

"The law does not require the impossible and since there is no one living in said School District No. 37, it is impossible to present a petition to the boundary board from that district. Therefore, School District No. 1 is, in effect, a majority of the districts within the union high school district, and it would be a substantial compliance with the law if the petition required in said section * * * be presented by, and the election held in the only remaining school district in the union high school district."

The issue presented is a close one, and, as previously indicated, we find no court decisions squarely on the factual situation presented by your letter. Nevertheless, upon the authorities above stated, it is our opinion that if the matter were presented for court decision the court would construe the statute as you have interpreted. In other words, in order for a school district to have the right to be counted at all as a "district voting" there must have been an exercise of the right of suffrage by the legal voters in such district. Since there were only five districts within which votes were cast, a majority of the five would be sufficient to declare the proposal as passed.

Your second question is:

"Assuming that the measure did pass instead of failing, and since the election was held nearly a year ago, what procedure should be followed to require the school board to reexamine the canvass of the votes and redetermine that the matter did in fact pass and did not fail?"

It is noticed that under ORS 335.500 no time is prescribed within which the board shall canvass the votes of the election, but under your statement of facts, it would appear that the board did canvass the votes and reached the conclusion that the election had failed. In 18 Am. Jur. 348, Elections, § 256, in discussing a recanvass of votes, it is said:

"When a board of canvassers has fully performed its duty, proclaimed the result of the count according to law, and adjourned sine die, its duty must be considered as having been performed once and for all time. The board is then deemed functus officio, so that the persons who composed it do not have any power or authority voluntarily to reassemble and recanvass the returns; nor may they be compelled to do so by mandamus. * * * However, a canvassing board cannot evade its duties by adjourning without taking the action required by law, and as a general rule, mandamus lies to compel them to reassemble and perform their duty. Thus, a canvassing board may be required to reassemble and perform its duties where it has adjourned sine die without having made canvass or where it has ascertained the result of the election to be a tie, but has not, in accordance with statute, determined by lot the person entitled to the office. * * * There is authority to the effect that where the return of the board shows that it has counted illegal ballots in arriving at its result, it may be compelled to recanvass the vote excluding such illegal ballots. * * *"

The limitations of a canvassing board are discussed in Opinions of the Attorney General, 1946-1948, p. 280; 1938-1940, p. 38; 1930-1932, p. 333; 1920-1922, p. 265. On the other hand, in Opinions of the Attorney General, 1920-1922, p. 651, it was held that when a canvassing board fails or refuses to fully canvass the returns of an election, mandamus will lie to compel the board to do its duty.

In response to your final inquiry, we must first advise that the opinions of this office are, of course, purely advisory, and we cannot resolve the validity of an election, that being the function of a court; whether or not a court would compel a recanvass of the votes or whether mandamus will lie by reason of lapse of time and other matters that may have transpired, are questions upon which we can express no opinion.

It would appear that the provisions of ORS 335.370 and 335.375 would be available to the school board for the purpose of adjudicating the regularity and results of the election. Under ORS 335.370 the school board of any union high school district may by petition commence special proceedings in the circuit court for the county in which the high school is maintained for the purpose of having a judicial examination and judgment of the court as to the regularity and legality of proceedings in connection with the ORGAnization of the district and the election and ORGAnization of the union high school board of such district. ORS 335.375 empowers the court to inquire into the matters alleged in the petition and

"* * * The court may approve the proceedings in whole or in part and disapprove and declare illegal or invalid other or subsequent proceedings in whole or in part and may approve the proceedings in part and disapprove the remainder thereof. * * *"

In Edwards et al. v. Union High School District No. 8, (1953) 198 Or. 611, 258 P. (2d) 148, the court in interpreting this statute held that it had authority to determine the validity of subsequent boundary changes in a union high school district and the validity of

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an election concerning a building site and a bond issue for building purposes, saying, at page 628:

"It is conceded that the foregoing statutes provide primarily for a special proceeding to determine the validity of the acts of ORGAnization and the election of members of the school board. However, the emphasized portion of the statute clearly indicates that the legislature intended that in any such proceeding, all questions of doubt then in existence should be determined in the one suit. The statute clearly contemplates other and subsequent proceedings following those of ORGAnization and the election of the school board and specifically authorizes the court, in the suit that is brought, to approve or disapprove them in whole or in part. The proceeding is actually in the nature of a suit for a declaratory judgment, and the statute is broad enough to permit the determination of all questions in dispute at the time the suit is commenced. * * *"