School Dist. No. 1, Multnomah County v. School Dist. No. 45, Multnomah County

• Decision Date: 20 November 1934
• Parties: SCHOOL DIST. NO. 1, MULTNOMAH COUNTY v. SCHOOL DIST. NO. 45, MULTNOMAH COUNTY, et al.
• Court: Oregon Supreme Court

37 P.2d 873

148 Or. 554

SCHOOL DIST. NO. 1, MULTNOMAH COUNTY v. SCHOOL DIST. NO. 45, MULTNOMAH COUNTY, et al.

Supreme Court of Oregon

November 20, 1934

En Banc.

Appeal from Circuit Court, Multnomah County; James P. Stapleton Judge.

Declaratory judgment proceeding by School District No. 1, Multnomah County, Oregon, against School District No. 45, Multnomah County, Oregon, and others, to determine whether the consolidation of School District No. 1 and School District No. 45 is valid. From a judgment declaring such consolidation to be invalid, the named defendant appeals.

Affirmed.

Homer Angell, of Portland (Angell & Fisher, of Portland, on the brief), for appellant.

L. V Lundburg, of Portland (B. A. Green, of Portland, on the brief), for respondent De Witt Henley.

Ralph H. King, of Portland, for respondent School District No. 1.

KELLY Justice.

Defendant De Witt Henley filed a general demurrer to the further and separate answer of defendant School District No. 45, which demurrer was sustained; and, by stipulation the facts, as distinguished from legal conclusions, alleged in the complaint and in the further and separate answer are admitted. They constitute all of the facts appearing in the record.

The complaint alleges that plaintiff was and now is a school district of the first class, and that defendant School District No. 45 was a school district of the second class in Multnomah county, Or.; that defendants Rude, Dana, and Mann were the directors of School District No. 45; that the defendant Henley was a resident, property owner, and taxpayer in said District No. 45; and that the defendants Phegley Shull, Bigelow, and Cannon comprised the District Boundary Board of Multnomah County.

The remaining allegations of said complaint are as follows:

"That said school District No. 1 and said School District No. 45 are contiguous school districts in Multnomah County Oregon. That within the ten days immediately prior to May 22, 1933, a petition from said School District No. 1 was presented to said District Boundary Board of Multnomah County. That said petition contained the signatures of 100 legal school voters of said School District No. 1, and set forth specifically therein that said district proposed to consolidate with said School District No. 45. That within the ten days immediately prior to May 22, 1933, a petition from said School District No. 45 was presented to said District Boundary Board of Multnomah County. That said petition contained the signatures of 50 legal school voters of said School District No. 45, and set forth specifically therein that said district proposed to consolidate with said School District No. 1. That each of said petitions requested said District Boundary Board to submit, at the next annual or special meeting, to the legal voters of the said districts the question of the consolidation of said districts.

"That the District Boundary Board met in regular session on May 22, 1933, at which time the said District Boundary Board considered the aforesaid petitions, and thereupon gave notice thereof to the School Board of said School District No. 1, and the School Board of said School District No. 45.

"That thereafter and on June 6, 1933, an election was held in said School District No. 1 at which a vote was taken upon said consolidation. That thereafter and on June 17, 1933, an election was held in said School District No. 45 at which a vote was taken upon said consolidation.

"That thereafter and on June 23, 1933, a meeting of said District Boundary Board was held and at said meeting said District Boundary Board canvassed the vote at said elections and as a result of said canvass declared the vote on said consolidation at said election held in said School District No. 1 to be

"For Consolidation-Yes-8,861

"For Consolidation-No-4,427

and declared the vote on said consolidation at said election held in said School District No. 45 to be

"For Consolidation-Yes-67

"For Consolidation-No-96

"That said District Boundary Board thereupon declared that the vote for the consolidation of School District No. 1 and School District No. 45 had failed to carry in School District No. 45.

"That within the ten days immediately prior to April 7, 1934, a petition from said School District No. 1 was presented to said District Boundary Board of Multnomah County, Oregon. That said petition contained the signatures of 100 legal school voters of said School District No. 1, and set forth specifically therein that said district proposed to consolidate with said School District No. 45. That within the ten days immediately prior to April 7, 1934, a petition from said School District No. 45 was presented to said District Boundary Board of Multnomah County. That said petition contained the signatures of 50 legal school voters of said School District No. 45, and set forth specifically therein that said district proposed to consolidate with said School District No. 1. That each of said petitions requested said District Boundary Board to submit, at the next annual or special meeting, to the legal voters of the said districts the question of the consolidation of said districts.

"That the District Boundary Board met in regular session on April 7, 1934, at which time the said District Boundary Board considered the aforesaid petitions and thereupon gave notice thereof to the School Board of said School District No. 1 and the School Board of said School District No. 45.

"That thereafter and on April 28, 1934, an election was held in said School District No. 45, at which a vote was taken upon said consolidation.

"That thereafter and on May 7, 1934, a meeting of said District Boundary Board was held and at said meeting said District Boundary Board canvassed the vote at said election and as a result of said canvass declared the vote on said consolidation at said election held in said School District No. 45 to be

"For Consolidation-Yes-118

"For Consolidation-No-102

Thereupon said District Boundary Board at said meeting made the following declaration:

"'In canvassing the vote it was found that the consolidation carried in District 45 with 118 votes for consolidation and 102 against. The District Attorney ruled that the vote taken in School District No. 1 a year ago for consolidation of Districts 45 and 1, showing 8,861 votes for consolidation and 4,427 votes against (see minutes June 23, 1933) would hold and no election in School District No. 1 would be necessary at this time.

"'Therefore, the District Boundary Board declared School Districts 45 and 1 consolidated for all school purposes. The secretary was ordered to so advise the clerk of the respective districts, the county treasurer and the assessor of Multnomah County.' "That thereupon the District Boundary Board, as set forth in the above proceedings, declared School District No. 1 and School District No. 45 consolidated; and thereupon said District Boundary Board notified the County Treasurer of Multnomah County, the County Assessor of Multnomah County, the Clerk of School District No. 1 and the Clerk of School District No. 45 of said consolidation.

"That no election has been held in School District No. 1 upon said consolidation since the election of June 6, 1933, and up to the time of the filing of this complaint.

"That by reason of the aforesaid action of the District Boundary Board the defendant School District No. 45 asserts that it is a part and parcel of School District No. 1 and that it has been duly and regularly consolidated with said School District No. 1. That defendant School District No. 45 demands that the plaintiff supply and furnish said defendant with teachers and all facilities necessary for the instruction of school children residing in the territory embraced within School District No. 45 before the aforesaid order of consolidation made by the District Boundary Board as hereinbefore alleged.

"That plaintiff is advised and therefore alleges that no valid consolidation of defendant School District No. 45 with plaintiff could be had without a further election to be held within School District No. 1, and that by reason of the fact that no such election was held after the filing of the petitions considered by the District Boundary Board on April 7, 1934, as hereinbefore alleged, the order of consolidation made by the District Boundary Board on May 7, 1934, was illegal and void.

"That the defendant DeWitt Henley has announced and declared that the territory embraced within School District No. 45 prior to the purported order of consolidation has not validly been included and consolidated with School District No. 1, and that School District No. 1 can not receive from the County Treasurer any funds belonging to School District No. 45, nor levy any tax for school purposes upon his lands situate within the former boundaries of School District No. 45. That plaintiff believes and therefore alleges that there are more than 25 taxpayers and property owners owning lands within the former boundaries of School District No. 45 who resist the levy of taxes for school purposes upon their lands.

"That plaintiff cannot prepare a budget of its revenues, nor proceed to pay teachers for the instruction of school children residing within the former boundaries of School District No. 45 without a determination by this court of the validity of the order of the District Boundary Board of May 7, 1934, declaring School District No. 45 consolidated with School District No. 1. That unless plaintiff can levy taxes upon the lands and property within the former boundaries of School District No. 45 for the support of the public schools of School District No. 1 plaintiff has no funds and cannot rightfully supply instruction to school children residing...