352 P.2d 564 (Or. 1960), Dilger v. School Dist. 24 CJ

Citation352 P.2d 564, 222 Or. 108
Opinion JudgePERRY, J.,
Party NameFelix L. DILGER, Appellant, v. SCHOOL DISTRICT 24 CJ, Respondent.
AttorneyPat Dooley, Portland, argued the cause and filed briefs for appellant. Robert De Armond, Salem, argued the cause and filed a brief for respondent.
Case DateMay 25, 1960
CourtSupreme Court of Oregon

Page 564

352 P.2d 564 (Or. 1960)

222 Or. 108

Felix L. DILGER, Appellant,

v.

SCHOOL DISTRICT 24 CJ, Respondent.

Supreme Court of Oregon, En Banc

May 25, 1960

Argued and Submitted April 6, 1960.

Page 565

[222 Or. 110] Pat Dooley, Portland, argued the cause and filed briefs for appellant.

Robert De Armond, Salem, argued the cause and filed a brief for respondent.

Before McALLISTER, C. J., and ROSSMAN, WARNER, PERRY, SLOAN, O'CONNELL and GOODWIN, JJ.

O'CONNELL, Justice.

The plaintiff prays for a declaratory judgment adjudicating the respective rights and duties of the plaintiff and the defendant School District under ORS 336.260, popularly known as the released time statute. The defendant demurred to the complaint on the ground that it failed to state a cause of action. The trial judge raised a question as to whether an application for a declaratory judgment is demurrable, whereupon counsel for both parties requested the court to make a final determination of the matter upon the record as it then stood. By their stipulation the parties and the court understood that the statute was [222 Or. 111] being attacked as unconstitutional on the ground that it was vague, indefinite and uncertain. The court treated the issue so formed as the justiciable controversy presented to him for determination. From a judgment sustaining a demurrer to plaintiff's complaint, plaintiff appeals.

ORS 336.260 reads as follows:

'336.260 Attendance at religious instruction. Any child attending the public school, on application of his guardian or either of his parents, may be excused from such school for a period or periods not exceeding 120 minutes in any week to attend weekday schools giving instruction in religion.'

The plaintiff notified the defendant in writing that he desired that his two children, then attending West Salem School, should be excused from school attendance for a period or periods not exceeding 120 minutes in any one week for the purpose of receiving religious instruction. The defendant, acting through its Superintendent of Schools, denied plaintiff's application for the requested release. The superintendent's action was later ratified by the defendant. Defendant's demurrer was interposed on the ground that the complaint failed to state facts sufficient to constitute a cause of suit.

In sustaining the demurrer the trial court held that ORS 336.260 was fatally defective in that it failed to designate the official or board in the school system to whom the application for released time is to be made, and further, that although ORS 336.990 makes the violation of ORS 336.260 a misdemeanor, there is nothing in the statutes to indicate who is punishable for a violation of ORS 336.260.

Page 566

We must first decide whether the failure of ORS [222 Or. 112] 336.260 or any other statute to specifically designate the school official or officials to whom the application for released time is to be made renders the statute void for indefiniteness.

It is axiomatic that the courts cannot in the guise of construction supply an integral part of a statutory scheme omitted by the legislature. State of Oregon v. Davis, 1956, 207 Or. 525, 296 P.2d 240; State v. Wolf, 1888, 17 Or. 119, 129, 20 P. 316; ORS 174.010; Crawford, Statutory Construction, § 169. See, City of Athena v. Jack, 1925, 115 Or. 357, 236 P. 760. As stated in State ex rel. Everding v. Simon, 1891, 20 Or. 365, 373, 374, 26 P. 170, 172:

'* * * Courts cannot supply omissions in legislation, nor afford relief, because they are supposed to exist. To adopt the language of Mr. Justice Woods, in Hobbs v. McLean, 117 U.S. 579, 6 S.Ct. 870: 'when a provision is left out of a statute, either by design or mistake of the legislature, the courts have no power to supply it. To do so would be to legislate, and not to construe.' 'We are bound,' said Justice Buller, in Jones v. Smart, 1 Term R. 44, 'to take the act of parliament as they have made it. A casus omissus can in no case be supplied by a court of law, for that would be to make laws. Nor can I conceive that it is our province to consider whether such a law that has been passed be tyrannical or not.' and Mr. Justice Story, in Smith v. Rines, Fed.Cas.No. 13,100, 2 Summ. 338, 354, 355, observes: 'It is not for courts of justice proprio marte to provide for all defects or mischiefs of imperfect legislation.' See, also, King v. Burrell, 12 Adol. & E. 460; Lamond v. Eiffe, 3 Q.B. 910; Bloxam v. Elsee, 6 Barn. & C. 169; Bartlett v. Morris, 9 Port. (Ala.) 266.'

But a statute may be legally complete although the administrative machinery by which it is to be made operative is found elsewhere in the statutes, and the [222 Or. 113] implementing statutes may be effective to complete the statutory scheme even though it is necessary in doing so to resort to implication. And so, where a statute is silent as to the manner in which a governmental agency such as a district school board is to carry out the purpose of the statute, it is permissible in determining the nature of the agency's functions to look at the character of its function as defined in other statutes. State v. Buck, 1953, 200 Or. 87, 262 P.2d 495; City of Wichita v. Wyman, 1944, 158 Kan. 709, 150 P.2d 154; 3 Sutherland, Statutory Construction (3rd ed.), § 6604. Likewise, where the statute does not specify the agency which is to administer the law it is proper for the court to regard the statute as impliedly allocating the administration of the law to the agency which was created by the legislature to carry out the same type of function with which the statute is concerned. Our statutes are replete with instances in which the legislature has set out various duties which are to be performed or powers which may be exercised in carrying out the school laws without mentioning in the statute the specific agency in the school system which is invested with such powers and duties. In the very chapter in which ORS 336.260 is compiled we find other sections which prescribe conduct without any designation of the school official who is to be responsible for administering the section. ORS 336.160; ORS 336.180.

The school district is the agency which is charged with the duty of carrying out the details involved in the administration of the public schools. The day to day tasks which are incident to the teaching of the pupils, including their daily attendance at school, are left to the school district acting through its superintendent, the various school principals and teachers. [222 Or. 114] It would be impossible for the legislature to specify in detail each of the powers and duties which might be performed by the school board or its representatives or to indicate in each instance which official, board or person in the hierarchy of school

Page 567

administration is to perform each function.

From an examination of the entire school code we think that it is clear that the legislature intended that the administration of the released time statute should devolve upon the district school board acting through its representatives. As we shall explain more fully below, the only administrative task involved in carrying out ORS 336.260 relates to the orderly functioning of the day to day operation of the school program. That is a task which must be carried out by those who are dealing directly with the problems as they arise in the course of dealing with the pupils and their parents. The administration of ORS 336.260 is of this character and the school district and its representatives are responsible for carrying out the purpose of the statute.

We turn then to a consideration of the character of the school board's powers and duties under ORS 336.260. The defendant argues that even assuming that the statute can be construed as vesting in a particular agency the authority to act, nevertheless the statute is invalid for still another reason. It is urged that ORS 336.260 vests in the administrative agency an unguided and uncontrolled discretion to determine whether a pupil will be released for religious instruction. Certainly the statute would be unconstitutional if there were no standards against which the school officials' action could be tested. 1 Davis, Administrative Law Treatise, §§ 2.07, 2.08, 2.11; Forkosch, Administrative Law, §§ 81-84. But we are [222 Or. 115] of the opinion that the statute should not be so construed.

First, we regard the statute as vesting in the pupil's parent or guardian and not the school officials, the power to determine whether the pupil will spend a part of his school time not exceeding 120 minutes in any week in religious instruction. Obviously the legislature did not intend that the school officials should have any voice in deciding whether a particular pupil should receive religious instruction. It seems equally obvious that it was not intended to invest in the school officials the authority to weigh the respective values of religious and nonreligious instruction and decide whether less than 120 minutes in any one week would be sufficient for a particular pupil's spiritual needs. The statute, must therefore, be construed as requiring the granting of an excuse upon an application by the parent or guardian.

It does not follow that the school officials have no discretion whatsoever in the course of carrying out the mandate of the statute. The statute is silent with respect to the specific manner in which the school is to adjust its program to the demands of those who wish to have their children released from school. The statute does not say that a parent or guardian can set the time when the child shall be released. Neither does it say that the school officials shall set the time. But a statute is not invalid on the ground of indefiniteness or on the ground that it grants an unguided discretion, merely because it fails to set out the various details necessary to the administration of the statute. There are numerous...

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31 practice notes
  • 903 P.2d 351 (Or. 1995), SC S40567, Meltebeke v. Bureau of Labor and Industries
    • United States
    • Supreme Court of Oregon
    • 5 octobre 1995
    ..." (quoting Judge Matthew P. Deady speaking at Oregon's constitutional convention in 1857)); 13 Dilger v. School District 24 CJ, 222 Or. 108, 132, 352 P.2d 564 (1960) (denial of atheist parent's right to excuse that parent's child from religious training "would probably be a violat......
  • 983 P.2d 1044 (Or.App. 1999), CA A100530, Young v. State
    • United States
    • Court of Appeals of Oregon
    • 2 juin 1999
    ...so as to better serve what the court feels was, or should have been, the legislature's intent."); Dilger v. School District 24 CJ, 222 Or. 108, 112, 352 P.2d 564 (1960) ("It is axiomatic that the courts cannot in the guise of construction supply an integral part of a statutory sch......
  • 484 P.2d 869 (Or.App. 1971), People v. Debt Reducers, Inc.
    • United States
    • Court of Appeals of Oregon
    • 6 mai 1971
    ...is covered in that act, and authority with reference thereto is conferred on the commissioner. Page 875 In Dilger v. School District 24CJ, 222 Or. 108, 352 P.2d 564 (1960), the Oregon Supreme Court '* * * (W)here the statute does not specify the agency which is to administer the law it is p......
  • 505 P.2d 939 (Or.App. 1973), Neuhaus v. Federico
    • United States
    • Court of Appeals of Oregon
    • 2 février 1973
    ...question of the extent of a school board's authority to enact rules governing student conduct. See, e.g., Dilger v. School District 24CJ, 222 Or. 108, 353 P.2d 564 (1960); [12 Or.App. 319] Owens v. School District, 3 Or.App. 294, 473 P.2d 678 (1970). Thus, the question of the school board's......
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24 cases
  • 484 P.2d 869 (Or.App. 1971), People v. Debt Reducers, Inc.
    • United States
    • Oregon Court of Appeals of Oregon
    • 6 mai 1971
    ...is covered in that act, and authority with reference thereto is conferred on the commissioner. Page 875 In Dilger v. School District 24CJ, 222 Or. 108, 352 P.2d 564 (1960), the Oregon Supreme Court said: '* * * (W)here the statute does not specify the agency which is to administer the law i......
  • 505 P.2d 939 (Or.App. 1973), Neuhaus v. Federico
    • United States
    • Oregon Court of Appeals of Oregon
    • 2 février 1973
    ...question of the extent of a school board's authority to enact rules governing student conduct. See, e.g., Dilger v. School District 24CJ, 222 Or. 108, 353 P.2d 564 (1960); [12 Or.App. 319] Owens v. School District, 3 Or.App. 294, 473 P.2d 678 (1970). Thus, the question of the school board's......
  • 983 P.2d 1044 (Or.App. 1999), CA A100530, Young v. State
    • United States
    • Oregon Court of Appeals of Oregon
    • 2 juin 1999
    ...so as to better serve what the court feels was, or should have been, the legislature's intent."); Dilger v. School District 24 CJ, 222 Or. 108, 112, 352 P.2d 564 (1960) ("It is axiomatic that the courts cannot in the guise of construction supply an integral part of a statutory sch......
  • 139 N.W.2d 448 (Iowa 1966), 51954, Schultz v. Board of Adjustment of Pottawattamie County
    • United States
    • Iowa United States State Supreme Court of Iowa
    • 11 janvier 1966
    ...1095, 90 N.W.2d 730; Struhm v. City Council of City of Berkeley, 229 Cal.App.2d 278, 40 Cal.Rptr. 230, 232; and Dilger v. School District, 222 Or. 108, 352 P.2d 564, 568. It is evidence that by use of the word 'may' in section 38 of the ordinance the enacting body meant the board shall cons......
  • Request a trial to view additional results

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