Bagley v. Beaverton School Dist. No. 48

• Decision Date: 05 March 1973
• Citation: 507 P.2d 39,12 Or.App. 377
• Parties: Joseph H. BAGLEY, et al., Appellants, v. BEAVERTON SCHOOL DISTRICT #48 et al., Respondents, Roger Thomssen, Respondent-Cross-Appellant.
• Court: Oregon Court of Appeals

Page 39

507 P.2d 39

12 Or.App. 377

Joseph H. BAGLEY, et al., Appellants, v. BEAVERTON SCHOOL DISTRICT #48 et al., Respondents, Roger Thomssen, Respondent-Cross-Appellant.

Court of Appeals of Oregon.

Argued and Submitted Jan. 31, 1973.

Decided March 5, 1973.

Patrick J. Furrer, Tigard, argued the cause for appellants. On the brief was James F. McCaffrey, Tigard.

Clifford N. Carlsen, Jr., Portland, argued the cause for respondents. With him on the brief were Miller, Anderson, Nash, Yerke & Wiener, and Warren C. Deras, Portland.

Edward J. Sullivan, County Counsel, Hillsboro, argued the cause and filed the brief for respondent-cross-appellant.

Before SCHWAB, C.J., and LANGTRY and FORT, JJ.

LANGTRY, Judge.

Plaintiffs appeal from a circuit court judgment dismissing their petition contesting a special tax election of Beaverton School District No. 48. The judgment of dismissal was entered pursuant to the trial court finding that plaintiffs failed to file their petition within the statutory period specified by ORS 251.045. Defendant Thomssen, county clerk in charge of elections, cross-appeals from the circuit court's denial of his motion for attorney fees, costs and disbursements.

The record shows: On May 1, 1972 the District submitted to the voters a tax levy. On May 8, 1972 the District Board adopted and filed a certificate of result showing the levy to have been approved by a vote of 7,069 to 5,909. On this same day, plaintiffs allege they went to the business office of the District and made request to examine the records of the election, and that this request was denied. Plaintiffs further allege that on May 11, 1972 they made another request to examine the records and were again denied access to all records except a list of the names of absentee voters. However, at the time of their second request, plaintiffs say they were advised that the election records would be available in the office of the Washington County Clerk on May 15, 1972. On May 15 plaintiffs say they examined all requested records except approximately 600 challenged ballots, and that a final request to gain access to the approximately 600 challenged ballots was made on May 23 and denied.

On June 26, 1972 plaintiffs filed their petition contesting the election. On July 12 the court heard defendants' motions to quash and dismiss plaintiffs' petition (as amended) and found that plaintiffs had not filed their petition contesting the election within the 10-day period prescribed in ORS 251.045. Judgment was entered dismissing the petition.

ORS 251.045 provides:

'Not later than 10 days after the final canvass of votes or other final compilation of the result of any primary, general or special election * * * any person authorized by ORS 251.025 to contest * * * the approval or rejection of any measure at such election may file a petition of contest with the clerk of the circuit court for the county in which the certificate of * * * proclamation * * * is or will be issued * * *. The petition shall specify with particularity the cause of the contest, Shall name the contestees * * *.' (Emphasis supplied.)

ORS 251.015(2) provides that a contestee in a contest of a measure on the ballot shall mean '* * * any person involved in the cause of the contest.'

Plaintiffs contend that their failure to file the petition within the 10-day period was not fatal to their contest, that is, that time of filing was not jurisdictional. They urge two grounds in support of this contention. First, plaintiffs argue that the defendants waived any jurisdictional defects arising out of the failure to file within the 10-day period when they entered a general appearance in the case. Second, they argue that their failure to file timely was a result of defendants' denial of access to election records, and that, therefore, the defendants are estopped from asserting untimely filing as a jurisdictional bar. Each argument proceeds upon the assumption that the 10-day filing requirement is capable of waiver or extension.

The effect of plaintiffs' contention is that they want the 10-day filing requirement to be regarded as a statute of limitations, and not as a condition precedent to the right of action. If the requirement is regarded as a statute of limitations, the 10-day period might be susceptible to waiver by consent or action of the parties, and might also be capable of extension in some circumstances. But if the requirement is regarded as a precondition to the maintenance of the action itself, i.e., a fundamental requirement for jurisdiction, the 10-day filing period would not be capable of extension or waiver, and a court would, in no instance, have power or jurisdiction to consider a petition filed after the expiration of the specified 10-day period. See Fry v. Willamalane Park & Rec. Dist., 4 Or.App. 575, 481 P.2d 648 (1971), discussed infra.

Statutes of limitations are distinguishable from statutes which create a right of action not existing at common law coupled with a restriction on the time within which action may be brought to enforce the right. 51 Am.Jur.2d 599--600, Limitation of Actions, § 15 explains:

'* * * Although the general rule is that a true statute of limitations extinguishes only the right to enforce the remedy and not the substantive right itself, the limitation of time for commencing an action under a statute creating a new right enters into and becomes a part of the right of action itself and is a limitation not only of the remedy but of the right also; the right to recover depends upon the commencement of the action within the time limit set by the statute, and if that period of time is allowed to elapse without the institution of the action, the right of action is gone forever. The statute is an offer of an action on condition that it be commenced within the specified time, and if the offer is not accepted in the only way in which it can be accepted, by a commencement of the action within the specified time, the action and the right of action no longer exist and the defendant is exempt from liability.'

This rationale is often applied in wrongful death and other tort cases (See Richard v. Slate, 239 Or. 164, 396 P.2d 900 (1964)), but there is no authority to indicate that the distinction should not be applied to all statutes creating rights of action which did not exist at common law.

In Fry v. Willamalane Park & Rec. Dist., supra, this court construed the requirements of ORS 30.275(1), which directed written notice of a claim (under ORS 30.275) '* * * to be presented to the governing body of the public body within 45 days after the alleged loss or injury.' ORS 30.265(1) eliminates certain common law distinctions between tortious acts of a public body committed in its proprietary rather...