144 P. 475 | Or. | 1914
delivered the opinion of the court.
The action is brought under Section 366, L. O. L., which authorizes an action at law in the name of the state, upon the information of the prosecuting attorney, or upon the relation of a private party, against the person offending:
“(1) When any person shall usurp, intrude into, or unlawfully hold, or exercise any public office, civil or military, or any franchise within this state, or any office in a corporation either public or private, created or formed by or under the authority of this state; or * * (3) when any association or number of persons act within this state, as a corporation, without being duly incorporated. ’ ’
On July 31, 1912, a petition was filed with the district boundary board of Grant County from each of school districts Nos. 4, 5, 9,10 and 14, in which the boundary board was petitioned to direct the school boards of the several districts to call a school meeting or election in each district for the purpose of voting on the question of uniting the five districts for high school purposes only. On the 17th day of August, 1912, the boundary board met and made an order granting the prayer of the petitions, and directing that union high school consolidation elections be held in the respective school districts on the 3d day of September, 1912. A record of the meeting of the district boundary board was duly made and signed by the county judge, as ex-officio chairman, and the county school superintendent, as secretary, of the district boundary board. The record recites that each petition was signed by the requisite number of legal voters of the respective school
“Shall school districts Nos. 4, 5, 9, 10, and 14 of Grant County, Oregon, be united into a union high school district, and maintain a union high school in the town of Prairie City, Grant County, Oregon?”
Each notification contained the names of the directors and the clerk of the proper district, was served by the sheriff upon the chairman of each board of directors and the clerk of each of the school districts, and a return thereof certified. By virtue of the order and notification of the district boundary board, notices of an election to be held in the districts named on September 3, 1912, at 1 o’clock p. m., were posted in public places in each district more than ten days prior thereto. Pursuant to said notices at the time and place designated therein elections were held and a vote taken by ballot, which was tallied, counted and returned and canvassed, resulting as follows: “For union high school, Yes, 121; for union high school, No, 44” — leaving a majority of 77 in favor of the same. The district boundary board notified the respective school boards concerned of the result, and declared the territory comprising such districts to be high school district No. 1.
“Whenever it is desired to unite two or more contiguous school districts or parts of districts in this state for high school purposes only, a petition from each district shall be presented to the district boundary board setting forth specifically the districts or parts of districts it is proposed to consolidate, and also the site for the location of the union high school building. * * Said petition shall request the district boundary board to direct the school boards of each district designated in the petitions to state in the notice for the next annual school meeting or election, or at a special meeting or election, called for that purpose, the time of such meeting or election to be designated in said petitions that the question of uniting said school districts for high school purposes only, thus forming a union high school district, will be submitted. Within ten days after receiving such petitions, the district boundary board shall direct, in writing the respective school boards of the districts to be so united, to give the notices as requested in the petitions. * * The vote on the question is to be by ballot, and the ballot shall have written or printed thereon the words: ‘For Union High School — Yes.’ ‘For Union High School — No.’ ”
A return of the election is required to be made to the boundary board, which within ten days after receipt of the sealed returns shall canvass the votes, and if a majority of all votes cast is in favor of uniting such districts, the boundary board shall immediately notify the respective school boards concerned of the result and declare the territory comprising such districts to be a union high school district.
The position of counsel for the plaintiff is that the statute does not give the district boundary board the power to call or authorize the election, and that this must be done by the various district school boards. Counsel invoke the rule that where the election is special, and the order of some court or other body is required as a preliminary step for the holding of such an election, the absence of such order will render the election void — citing Marsden v. Harlocker, 48 Or. 90 (85 Pac. 328, 120 Am. St. Rep. 786). It should be noticed that the statute providing a means for the
“You are hereby notified to call a special school election in school district No. - of Grant County, Oregon, on Tuesday, the 3d day of September, 1912, at the hour of 1 o ’clock p. m. of said day, for the purpose of voting in said district upon the following question, to wit: ‘Shall school districts Nos. 4, 5, 9, 10, and 14 of Grant County, Oregon, be united into a union high school district and maintain a union high school in the town of Prairie City, Grant County, Oregon?’ ”
This document was accessible to every voter in the several districts.
“Notice is hereby given to the legal voters of school district No. - of Grant County, State of Oregon, that a special school meeting of said district will be held at the schoolhouse on the 3d day of September, 1912, at 1 o’clock in the afternoon, for the following object: Shall school districts Nos. 4, 5, 9, 10, and 14, of Grant County, Oregon, be united into a union high school district?”
The blanks were properly filled and the notices signed by the respective chairman of the board and the district clerk. It is contended that the notices should state the high school site. The statute directs that the petition shall request the district boundary board to direct the school boards to—
“state in the notice for the next annual school meeting or election, or at a special meeting or election, called for that purpose, the time of such meeting or .election to be designated in said petitions, that the question of uniting said school districts for high school purposes only, thus forming a union high school district, will be submitted. ’ ’
It appears from tbe record of tbe proceedings for tbe organization of a union bigb school district that there was a strict compliance with tbe statute in tbe proceedings by tbe boundary board and by all tbe school district officers, except in districts Nos. 5 and 9, where there was a substantial compliance with the law. There was no irregularity or want of formality that could have changed tbe result of tbe election. We therefore find that Union High School District No. 1 of Grant County, Oregon, was legally established.
The judgment of the lower court will therefore be affirmed. Affirmed.