School Dist. No. 17 of Sherman County v. Powell

• Decision Date: 19 January 1955
• Citation: 203 Or. 168,279 P.2d 492
• Parties: SCHOOL DISTRICT NO. 17 OF SHERMAN COUNTY, Respondent, v. Charles L. POWELL, Appellant.
• Court: Oregon Supreme Court

Page 492

279 P.2d 492

203 Or. 168

SCHOOL DISTRICT NO. 17 OF SHERMAN COUNTY, Respondent, v. Charles L. POWELL, Appellant.

Supreme Court of Oregon.

Argued Oct. 27, 1954.

Decided Jan. 19, 1955.

William E. Dougherty, Portland, argued the cause for appellant. With him on the brief were Robert F. Maguire and Raymond M. Kell, Portland.

Howard A. Rankin, Portland, argued the cause for respondent. With him on the briefs were T. Lester Johnson, Dist. Atty., for Sherman County, Moro, and Winfree, McCulloch, Shuler & Sayre, Portland.

Before WARNER, C. J., and LUSK, BRAND and RERRY, JJ.

LUSK, Justice.

The District School Board of School District No. 17, Sherman County, Oregon, a third-class school district, filed a petition in the Circuit Court, pursuant to the provisions of ORS 33.710 and 33.720 to obtain judicial approval of the proceedings authorizing a bond issue of $360,000 for a new high school.

Charles L. Powell, (hereinafter referred to as the contestant) a voter, freeholder and taxpayer of the district, appeared in opposition to the petition. After a hearing the court entered a decree sustaining the legality and regularity of the acts and proceedings of the district and its board 'in the calling and holding of the bond election'. The contestant, Powell, appeals.

The case requires an examination of the following provisions of ORS:

332.080. 'If authorized by a majority vote of the legal voters present at any legally called school meeting, the district school board shall purchase, lease, repair or build schoolhouses, houses for teachers and other employes and other necessary buildings, buy or lease land for school purposes, furnish schoolhouses and all other buildings hereinbefore mentioned with furniture, lights and apparatus; and for such purposes may, when so authorized, levy not oftener than once a year, a tax not exceeding five percent of the assessed value of the property of the district, or issue or sell negotiable bonds as provided by law. * * *'

328.205. 'School districts may contract a bonded indebtedness for the purpose of providing funds with which to acquire, to construct, to reconstruct, to improve, to repair, to equip, to furnish a school building or school buildings or additions thereto and to acquire all property, real and personal, appurtenant thereto or connected therewith, including school busses, or to fund or refund outstanding indebtedness, or for any one or combination of two or more of such purposes, and to provide for the payment of the debt.'

328.210. '(1) To provide funds for the purposes enumerated in ORS 328.205, any district school board may, whenever a majority thereof so decide, or shall, upon the petition of 10 legal voters thereof, in substantially the form contained in subsection (2) of this section, direct the district clerk to give notice of election in substantially the form contained in subsection (3) of this section.'

In the form of election notice provided by this section it is stated that 'at the school district bond election hereby called' the polls shall be open from 2 p. m. to 8 p. m. of the appointed day and that the vote shall be by ballot upon 'the question of contracting a bonded indebtedness in the sum of $_____ for the purpose of _____ in and for said school district.' The form of the ballot is prescribed.

328.215. Provides for publication or posting of the notice of election.

328.220. 'Immediately prior to opening the polls, the legal voters present shall convene, * * * and elect three judges and a clerk, who shall conduct the election and, when the polls are closed, canvass the vote and certify the result to the district school board, the county treasurer and the county superintendent. * * *'

The record shows that under date of February 25, 1953, the district school board unanimously adopted a resolution calling an election to be held on March 24, 1953, at which there would be submitted to the legal voters of the school district the question of contracting a bonded indebtedness in the sum of $360.000 for the purpose of constructing and equipping a school building and acquiring property appurtenant thereto, and directing the clerk to give the requisite notice of such election, and that notice was given in compliance with the requirements of the statute; that a meeting was held immediately prior to the conducting of the bond election at which judges and a clerk were selected to conduct the election, and that the proposed bond issue carried by a vote of 163 to 67. It does not appear that prior to the election a 'school meeting' was had in accordance with the provisions of ORS 332.080 at which the legal voters authorized the district school board to construct and equip a school building and purchase a site for it.

The contestant asserts that this omission constitutes a fatal defect in the proceedings because, as it is argued, §§ 332.080 and 328.210 are to be construed in pari materia and the grant of authority at a 'school meeting' under the former section is a condition precedent to the exercise by the board of the power to call a bond election under the latter. In support of this position the contestant calls attention to cases holding that a 'school meeting' is a deliberative assembly of the voters of the district called for the purpose of conference and consultation (see Behrens v. Bechtel, 131 Wash. 508, 230 P. 426; Petrie v. Common School District, 44 Idaho 92, 255 P. 318; 3 Cooley on Taxation (4th ed.) §§ 1019, 1020), and dwells in argument upon the purpose which such a meeting may serve of forestalling the submission by the board to the voters of the district of ill-considered and imprudent proposals. A mere election, it is said, is not a 'school meeting'.

We may agree that a 'school meeting' has the meaning claimed for it without yielding to the suggested construction of the statute. In our opinion the authority to call a bond election vested in the board is not necessarily supplementary to favorable action at a school meeting on the question of building and equipping a school building. An election may follow such action where the issuance of bonds is necessary in order to finance the construction of a building so authorized. Baxter v. Davis, 58 Or. 109, 112, 112 P. 410, 113 P. 438. But, where there has been no such previous action, a vote at a bond election in favor of a bonded indebtedness for the purpose of constructing a school building is at once authority to construct the building and issue bonds. The opinion in Baxter v. Davis, a case cited by both parties, so states.

There have been significant changes in the relevant legislation since Baxter v. Davis was decided in 1911. There was at that time a provision, B. & C. Comp. § 3389, Subdiv. 5, not materially different from ORS 332.080. But there was no general grant of power to contract a bonded indebtedness for the purpose of providing funds with which to construct a school building, etc., such as that contained in ORS 328.205. This provision was adopted in 1913. General Laws of Oregon 1913, ch. 172, § 2. By the same section a change was made in the provision prescribing the form of the bond election notice. Previously it read: 'Notice is hereby given that at a school meeting of school district No. _____' etc. (Italics added.) B. & C. Comp. § 3389, Subdiv. 31. The 1913 amendment, now ORS 328.210, reads: 'Notice hereby is given that at the school district bond election hereby called', etc. (Italics added.) In the present statute there is no reference to a meeting in connection with the bond election save the meeting prior to the election for the purpose of selecting election officials, as provided for by ORS 328.220.

These new provisions, considered together, can only properly be interpreted as authorizing the board, whenever a majority shall so decide, or upon the petition of ten legal voters of the district, to call an election at which 'by one and the same vote', as it is phrased in Baxter v. Davis, and without the necessity of a school meeting, either prior to such election or concurrently with it, authority may be conferred to construct and equip a school building or perform any of the other acts enumerated in ORS 328.205, and also to provide for the financing of such projects by the issuance of bonds.

As heretofore indicated, the argument on behalf of the contestant proceeds upon the view that the authority to call a bond election depends upon the previous conferring of authority by a school meeting as provided in ORS 332.080. We are not persuaded that this is a natural reading of the section. If it were it would introduce a curious anomaly into the statute, for one of the purposes for which school districts are authorized by ORS 328.205 to contract a bonded indebtedness is to acquire school busses, a subject mentioned in ORS 332.080. Consequently the 'school meeting' provision can in no view of the matter apply to the acquisition of school busses. It seems to us that it would be highly unreasonable to say that the statute means that, while an election, without more, is sufficient for the purpose of contracting an indebtedness in order to provide funds with which to acquire school busses, the authority to issue bonds for any of the other purposes enumerated in the very same section can only be exercised after prior authorization at a school meeting.

This conclusion does not conflict with Baxter v. Davis. The question for decision in that case was whether, after issuance of bonds for financing the construction of a building and purchasing a site had been authorized at a school meeting which was also an election, the school board itself was empowered to select a site for the building. The court held that the power to select the site was vested solely in the legal voters of the district to be exercised by them at a school meeting. The discussion found in the opinion of the power to issue bonds was more or less obiter. In the course of that discussion the court said,...