School District No. 1 v. Gleason

KELLY, J. Original proceeding in mandamus to require defendant as Registrar of Elections for Multnomah *578 County to conduct an election upon the proposal for a special tax levy for the fiscal year 1946-47 by plaintiff School District No. 1 of Multnomah County, which is a district having a population of more than 100,000 according to the United States census. KELLY, J. On February 27,1946, plaintiff’s board of directors adopted the following resolution: “Resolved, That the Board of Directors of School District No. 1, Multnomah County, Oregon, in the exercise of its discretion, hereby finds that it is necessary to levy a larger amount of taxes for the fiscal year commencing July 1, 1946, than the amount limited by the constitution except upon a vote of the people for the reasons that Establishment of war industries brought into this area thousands of workers with children which increased average daily school attendance from 38,000 in 1941-42 to 45,000 in 1945-46. Federal government helped finance this expansion during the last three years. Under existing congressional legislation, federal assistance will not be available after June 1946. Therefore, funds must be provided from local sources if present standards of physical properties, staff, and educational opportunities are to be maintained for a probable continuing increase in attendance. It is further “Resolved, That there be submitted to the electors of School District No. 1, Multnomah County, Oregon, at the next regular school election, being the primary election to be held the 17th day of May, 1946, the following proposal: Shall School District No. 1, in order to provide a fund for the maintenance and operation of its schools, school plants and school facilities during the fiscal year commencing July 1, 1946, and end *579 ing June 30, 1947, make a special tax levy outside the limits imposed by Article XI, Section 11, of the Oregon Constitution, in said fiscal year commencing July 1,1946, in the amount of $1,750,000.00? ( ) Yes. I vote in favor of the proposed levy. ( ) No. I vote against the proposed levy.” The foregoing finding and resolutions were certified to defendant accompanied with a demand that defendant as Registrar of Elections submit said proposed tax levy to the electorate at their next ensuing school election in said school district which will be held on May 17, 1946. On April 3, 1946, defendant notified plaintiff of his refusal to submit said proposed tax levy to the electorate or conduct an election thereon. Upon petition by plaintiff, an alternative writ of mandamus issued herein requiring defendant to submit said proposed tax levy and conduct an election or show cause why he should not be required to do so. Defendant filed a general demurrer to said alternative writ of mandamus and a brief thereupon. Plaintiff has also filed a brief herein. Oral arguments by counsel for both parties have been heard. The question to be decided is whether there is any effective statute authorizing or requiring defendant, as Registrar of Elections, to conduct an election in said School District No. 1 for the purpose of submitting to its electorate the question whether the proposed special tax levy should be made. It is conceded by both parties that there is no inherent reserved power in the people to hold an election and that to be legal and effective an election must be conducted in accordance with and pursuant to a valid statute authorizing it. State ex rel v. Simon, 20 Or. 365, 26 P. 170; State ex rel v. Kozer, 115 Or. 638, *580 239 P. 805; Kneeland v. Multnomah Co., 139 Or. 356, 10 P. 2d 342; State ex rel v. Hoss, 143 Or. 383, 22 P. 2d 883; State ex rel v. Hayworth, 152 Or. 416, 53 P. 2d 1048. Defendant contends that there is no statute authorizing the submission of the proposed special tax levy to the electorate or the holding of an election thereon. Plaintiff concedes that, if the statutory authority exists at all to submit to the electorate a proposal for a special tax levy, it exists solely by virtue of Section 110-1109, Vol. 7, O. C. L. A., pp. 1239-40, when applied to the provisions of Chapter 222 of Oregon Laws 1937, pp. 317-320, Sections 111-1526, 111-1527, 111-1528, 111-1529, 111-1530, 111-1531, 111-1525 and 111-1532, Vol. 8, O. C. L. A. pp. 158-161, amended as to Section 111-1529, by Chapter 295, Oregon Laws 1941, p. 507. Section 110-1109, O. C. L. A. supra, is as follows: “School district tax levy: By whom determination and certificate of necessity made: Notice of election: Election procedure. In school districts the like determination and certificate upon the question of increasing the tax levy and fixing the date of the election shall be made by the board of directors and notice of such election given by the school district clerk in the same manner as other elections are called by such districts, which notice shall be given and published for not less than twenty days prior to the date of the election. Such election shall be conducted and held and the result thereof ascertained in the usual manner of holding such elections in such districts respectively, and at the time specified in the notice.” It will be observed that section 110-1109 provides that the date of election shall be fixed by the board of directors, notice thereof shall be given by the school district clerk, and shall be published not less than *581 twenty days prior to the election which shall be held at the time specified in the notice. The defendant is the duly appointed, qualified and acting Registrar of Elections of Multnomah County, the same being a county having more than 250,000 inhabitants. By virtue of Chapter 370, Oregon Laws 1945, such officer is required to perform the duties which theretofore were, now are or hereafter may be prescribed by law to be performed by the county clerk, the supervisor of elections or the sheriff of each of the various counties of the state in connection with the registration of voters, the conducting and holding of elections including the giving of notice thereof and the preparation of ballots therefor, the securing of polling places and the furnishing and delivery of election supplies, the canvassing of votes thereat, the custody of all records in connection therewith, the issuing of certificates of election, and each and every act required to be performed by such county clerks, supervisors of elections or sheriffs pertaining to or in connection with the holding of general, primary or special elections. No authority is conferred upon the Registrar of Elections to perform the duties which by the terms of said section 110-1109, O. C. L. A., supra, are placed upon the board of directors or the clerk of a school district of the first class. Section 1 of Chapter 222, Oregon Laws 1937, is as follows: “Section 1. On and after January 1, 1938, school elections in districts of this state having a population of more than 100,000, according to the United States census, shall be held as in this act provided.” Section 3 of Chapter 222, aforesaid, provides that at each primary election, directors shall be elected for *582 a term of four years to succeed the directors whose terms of office expire on June 30 of that year. By its terms, said Chapter 222 provides only for the election of directors and makes no provision for an election upon the question of levying a special tax. Section 10, of said Chapter 222, is as follows: ‘ ‘ Section 10. That chapter XVII, title XXXV, Oregon Code 1935 Supplement, and all laws or parts of laws in conflict herewith, he and the same hereby are repealed.” Chapter XVII, title XXXV so repealed, consists of one section, which is as follows: ‘ ‘ § 35-1701. School elections — Time and manner of holding — Districts of more than 100,000 population. — In all school districts of this state having a population of more than one hundred thousand [100,000], according to United States census, the annual election shall be held on the first Tuesday in June of each year, and such annual election, and any special election that may be legally held, shall be held from 8 a. m. to 8 p. m., and shall be by ballot, and such ballot shall be uniform and shall be provided by the board of directors. ’ ’ While, as stated, no authority is conferred upon the Registrar of Elections to perform the duties of the board of directors or the clerk of a school district, as prescribed by section 110-1109, O. C. L. A., supra, by section 5 of Chapter 222, Oregon Laws 1937, it is provided that the county clerk of the county in which such school district is located shall provide uniform printed ballots for the election of the members of the board of directors, and provision is also made in said section 5 for filing with the county clerk certificates of nomination for the office of director. Under the provisions of Chapter 370, Oregon Laws 1945, supra, the duties *583 thus required of the county clerk in said section 5 of Chapter 222, Oregon Laws 1937, were transferred to and imposed upon the Registrar of Elections; but, as stated, no duties have been imposed upon or required of the Registrar of Elections with reference to an election to determine whether a special tax levy shall be made by a school district. To determine whether or not defendant’s demurrer to the alternative writ of mandamus should be sustained, we need only to ascertain whether or not the duty rests upon defendant as Registrar of Elections to conduct an election in plaintiff school district whereat the question of levying a special tax may be determined. We find no provision of law placing such duty upon defendant as Registrar of Elections; and therefore Ave hold that defendant’s demurrer to the alternative writ of mandamus should be sustained. Were we to supplement this opinion by stating that there is no authority for holding an election in plaintiff school district to determine the question whether a special tax should be levied, such statement might well be deemed to be mere dictum; but the grave emergency confronting plaintiff district, as disclosed in the resolutions passed by its board of directors, prompts us to suggest that the present apparent lack of such authority should have the attention of the legislature. Defendant’s demurrer to the alternative writ of mandamus is sustained and this cause is dismissed. Brand and Hay, JJ., dissent in an opinion by Brand, J.