State ex rel. School Dist. No. 8 v. Goff , 110 Or. 349 ( 1924 )

McBRIDE, C. J.

This was a proceeding in the nature of quo warraoito brought against the defendants, pretending to exercise the duties of school directors and clerk, respectively, of an alleged Union High School District No. 5 of Umatilla County, Oregon; with the further object of having the alleged district declared nonexistent and the defendants incapable of exercising the duties of school directors and clerk therein.

The whole case turns upon the construction of certain sections of the Oregon Laws, and while questions other than the construction of these statutes are discussed we deem them unimportant in view of our construction of the statutes, which will be hereinafter quoted.

Section 5305, Oregon Laws (Olson’s Compilation), among other things, provides:

“(a) If a union high school is formed by uniting two districts of the third class, the school board of each of such districts shall be ex-officio members of the union high school board.

“ (b) If formed by any other combination of districts, the chairman of each school board shall be a member of the union high school board until the next annual school meeting, then there shall be elected from each district one member of the union high school board. # * ”

This section was amended by Chapter 316 of the Laws of 1921 so that it now reads as follows:

“Section 1. That section 5305 of the Oregon Laws be, and the same hereby is, amended to read as follows :

‘ ‘ Sec. 5305. Union High School Board, How Constituted. (a) If a union high school is formed by uniting two districts of the third class, the school board of each of such districts shall be ex-officio members of the union high school board.

“(b) If formed by uniting more than two and less than six districts of the 'third class, the chairman of each school board shall be ex-officio a member of the union high school board.

“(c) If formed by uniting more than five districts of the third class, the union high school board shall consist of five members, having the qualifications of school directors, to be elected at large from said union high school districts; provided, that not more than one member shall be elected from any district.

“(d) At the election for the organization of a union high school district composed by uniting more than five districts, and at the next annual election for union high school districts composed of more than five districts heretofore organized under the union high school act, there shall be elected five members of the union high school board. * * ”

It will be seen that this amendment entirely leaves out of view and fails to provide for the organization of union high school districts excepting by a combination of districts of the third class, and if we take the statute as it reads there is now no provision for uniting districts of the third class with districts of the first and second class.

One of the districts included in this attempted organization of Union High School District No. 5 was a district of the third class. The other districts were not of that grade. It was earnestly contended that the legislature could not have intended to prevent the organization of a high school district including districts of different classes, but that we should treat the amendment which eliminates the combination of districts of different classes as a clerical mistake and not intended by the legislature.

We are unable to accede to this view. To do this we would be required not only to strike out the words “third class” wherever they occur in the amendment, but to insert subdivision (b) of Section 5305 as it existed prior to the amendment. This would be judicial legislation, pure and simple. We have carefully examined the journals of the two houses and noted the course of the amendment of 1921 and find that it was introduced in precisely the shape in which it now appears and that the bill was referred to committees of both houses and reported back without any amendment or change and was passed in exactly the condition in which it appears in the Session Laws of 1921. This would seem to preclude the idea that there was any mistake or oversight in the framing of the measure or that its consequences were not intended by the legislature. While able and plausible arg-uments have been made by counsel for defendants pointing out, or attempting to point out, the alleged absurd consequences of a literal construction of the statute, it does not appear to us that these results are so absurd as to justify us in holding that the legislature did not intend to use the language employed by the framers of the measure. The language is plain, capable of being understood by any legislator possessing ordinary common sense, and we assume that every member has at least that; and if, viewing it in the light of its practical administration, the amendment has produced a result which experience now shows to have been bad, such result is not uncommonly the case with experimental legislation.

We regret the consequences which must follow by adhering to the literal construction of the act inasmuch as it appears that a large majority of the legal voters of all the districts desired to organize a union high school district, but we see no remedy except an appeal to the legislature.

We are of the opinion, after examining the various amendments as the law now stands, that every legal voter residing in the district has the right to vote upon, the question of the organization of a union high school district, irrespective of the fact that such voter is not a taxpayer, but in view of the fact that District No. 5 was not properly organized we are compelled to reverse the decree of the Circuit Court and enter a decree declaring the pretended organization of Union High School District No. 5 to be void and such district nonexistent, and, further, that the defendants have no right to exercise any duties as officers of such pretended district.

For appellants there was a brief over the names of Mr. S. A. Lowell and Messrs. Fee & Fee, with oral arguments by Mr. Lowell and Mr. James A. Fee, Jr. For respondents there was a brief over the names of Messrs. Raley, Raley & Steiwer, with oral arguments by Mr. James Roy Raley and Mr. Frederick Steiwer.

Reversed and Degree Entered.