State ex rel. School Dist. No. 25 v. Evans

• Citation: 82 Or. 46,160 P. 140
• Parties: STATE EX REL. SCHOOL DIST. NO. 25 ET AL. v. EVANS ET AL. [a1]
• Decision Date: 10 October 1916
• Court: Supreme Court of Oregon

160 P. 140

82 Or. 46

STATE EX REL. SCHOOL DIST. NO. 25 ET AL. v. EVANS ET AL. ^[a1]

Supreme Court of Oregon

October 10, 1916

Department 1.

Appeal from Circuit Court, Multnomah County; W. N. Gatens, Judge.

Action by the State, on the relation of School District No. 25, and others, against J. Ward Evans and others. From a judgment for relators, defendants appeal. Judgment affirmed.

Petitions were circulated in seven school districts of the third class and numbered 35, 36, 39, 41, 43, 48, and 50, asking the district boundary board to call an election to unite them for high school purposes. The petition for district No. 36 and the one circulated in district No. 50 were not signed by one-third of the legal voters and for that reason they were not sufficient to authorize the holding of an election in those two districts. Having received all the petitions from the seven school districts, the district boundary board ordered the holding of an election and caused a notice to be sent to the chairman of the board of school directors for each district, except districts 36 and 50, directing that the election be held. Notices that the election would be held for the purpose of uniting districts 35, 39, 41, 43, and 48 were duly posted in each of those districts and at the election which was held in the five districts, a majority voted for a union high school district. Having canvassed the votes the district boundary board declared on September 1, 1914, that districts 35, 39, 41, 43, and 48 were duly united for high school purposes under the name of Union High School District No. 1. The chairmen of the five school district boards, who by force of law became the directors of the union high school district, organized as directors of the union high school by electing J. Ward Evans as chairman and F. N. Lasley as clerk. A union high school was opened on September 28, 1914, and afterwards a union high school building was constructed at an expense of about $9,000.

During September, 1914, but after the middle of the month, a petition was circulated in school district No. 25, a district of the third class, asking the district boundary board to direct that an election be held on November 7, 1914, for the purpose of uniting that school district with union high school district No. 1. The names of 15 persons were signed to the petition which was circulated in school district No. 25. A similar petition for the annexation of school district No 25 was also circulated in the territory embraced within the boundaries of the union high school district. Acting upon these two petitions, the district boundary board on October 26, 1914, ordered that an election be held on November 7 1914, to decide whether school district No. 25 should be annexed to union high school district No. 1. Before making the order of October 26, 1914, the district boundary board received a writing which will be called a remonstrance. After reciting that they had signed the petition for the annexation of school district No. 25 on account of a misunderstanding of the facts and praying "that no further action be taken upon said petition," the remonstrance is signed by 8 persons who had signed the petition which had been circulated in school district No. 25 for the annexation of the territory to the union high school district. Appended to the remonstrance was a writing which, after confirming the recitals in the remonstrance and requesting "that no proceedings be taken compelling the joinder of said school district No. 25 with said union high school district No 1," was signed by 37 persons who represented themselves to be "legal voters of school district No. 25." The remonstrance was overruled by the district boundary board and no attempt was made to review its decision. The election was held on November 7, 1914, pursuant to notice and the order of the district boundary board. In the union high school district, 29 voted for and 2 voted against annexation, while in school district No. 25, 4 votes were cast for and 16 given against consolidation. After canvassing the votes the district boundary board declared that school district No. 25 and union high school district No. 1 "were legally united for high school purposes." The chairman of the school board of school district No. 25 refused to act as a director of the union high school district. Claiming to be the officers of union high school district No. 1 and asserting that school district No. 25 is included within union high school district No. 1, all the defendants except E. D. Chamberlain levied a tax on November 14, 1914, on all the taxable property within the union high school district including district No. 25. Afterwards on February 6, 1915 this action, which is the statutory substitute for the writ of quo warranto as well as for the proceeding by information in the nature of quo warranto, was commenced by the relators who as legal voters and taxpayers of school district No. 25 demand that the defendants be required to show by what authority they have acted, and that the pretended consolidation of school district No. 25 with union high school district No. 1 be dissolved. The trial court ruled that no question could be raised against the validity of the election which was held on August 25th when the five school districts voted to consolidate for union high school purposes, for the reason that the relators did not reside in or pay taxes on any property within any of these five districts. The court found from the evidence that there were 41 legal voters qualified to vote at school elections in school district No. 25, and that there were "11 other legal voters of the state of Oregon who had not the property qualifications necessary to entitle them to vote at school elections; " that the name of H. Henriksen and E. Bourgeois should be stricken from the petition which was circulated in school district No. 25, because the former was not a legal voter, and the latter neither signed nor authorized her name to be signed to the petition; that the petition circulated in school district No. 25 was not signed by one-third of the legal voters and consequently was not sufficient to confer jurisdiction, and that therefore school district No. 25 is not a part of the union high school district. A judgment was rendered for the relators in conformity with the findings made by the court, and the defendants appealed.

E. B. Seabrook, of Portland (Malarkey, Seabrook & Dibble, of Portland, on the brief), for appellants. J. M. Haddock, of Portland, for respondents.

HARRIS, J. (after stating the facts as above).

The relators allege that union high school district No. 1 does not legally exist for the reason that the petitions asked for the consolidation of seven school districts while the election was called to unite five districts. The defendants say that the relators cannot question the legality of the original organization of the high school district because all of the relators reside in school district No. 25 and none of them pay taxes on property in any of the five school districts which were united by the original organization of the high school district. An examination of this phase of the controversy between the parties will not be necessary because of the conclusions reached upon another branch of the case, and we shall therefore assume, without deciding, that as a result of the election which was held on August 25, 1914, the five school districts, numbered 35, 39, 41, 43, and 48, were legally consolidated as Union High School District No. 1.

The relators have challenged the defendants to show any right or authority for treating school district No. 25 as a part of union high school district No. 1; the defendants justify their acts by alleging that school district No. 25 was legally annexed to the high school district by an election which was ordered and held after the district boundary board had received a petition for annexation from the high school district and a similar petition from school district No. 25 signed by more than one-third of the "30 legal voters qualified to vote at school elections in said district and more than one-third of said legal qualified voters of said school district No. 25, to wit, 14 thereof." The relators reply by saying that the petition from school district No. 25 was only signed by 13 legal voters because E Bourgeois neither signed nor authorized her name to be signed to the petition and H. Henriksen was not a legal voter; and "that the number of legal voters of said district is now and was at all times herein referred to far more than three times the number of legal voters who signed said petition." The defendants allege and the relators deny that the petition from school district No. 25 contained one-third of the legal voters in that district. As a part of their case and almost at the very beginning of the trial the defendants in order "to show the number of legal voters in the district prima facie" offered, and the court received in evidence, an annual report for the year ending the third Monday in June, 1914, prepared by the clerk of school district No. 25, filed with the county school superintendent on July 15, 1914, showing the "number of legal voters for school purposes in district at time of making this report" to be 30. The relators met the "prima facie" case of the defendants by offering parol evidence that H. Henriksen was not a legal voter, that E. Bourgeois did not sign nor authorize her name to be signed to the petition, and that there were 41 legal voters in school district No. 25 when the petition was filed with the district boundary board. The defendants are now arguing that when the district boundary board ordered the election, that tribunal necessarily found the fact to be that the petition was...