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Eustace v. Speckhart

September 14, 1973

EUSTACE ET AL, RESPONDENTS,
v.
SPECKHART ET AL, APPELLANTS



Appeal from Circuit Court, Union County. W. F. Brownton, Judge. No. 21975.

Charles R. Cater, La Grande, argued the cause for appellants. With him on the briefs was Michael V. Johnson, La Grande.

Carl G. Helm, La Grande, argued the cause for respondents. With him on the brief were Helm, Wasley & Monce, La Grande.

Langtry, Presiding Judge, and Foley and Thornton, Judges.

Langtry

The Board of Directors of Union County School District No. 1 brought this proceeding under ORS 33.710 to 33.720 to obtain a court decree validating a school bond election. The special election was held on October 24, 1972 and a $6.2 million bond issue was approved by a vote of 1,938 to 1,686. Nineteen respondents filed an answer in the proceeding, contesting the validity of the election. After a trial on the merits the court entered an order validating the election and respondents have appealed therefrom. The only contentions meriting discussion are (1) that the last published notice of the election was defective by reason of being two days premature; (2) that petitioners circulated misleading and inaccurate statements concerning the bond issue; and (3) that the school board illegally spent district funds to influence a favorable vote; and each of these things invalidated the election.

Preliminary to consideration of these contentions we note that the school district contends that, because there was no evidence to support respondents' standing, their challenge of the election must fail. None of the respondents took the witness stand. There was no evidence supporting their allegation that they were citizens and taxpayers in the district. However, petitioners did not at any time challenge respondents' standing; and the trial court specifically held that, in view of the lack of evidence on the subject and petitioners' waiver of right to object in that respect, it found that respondents did have standing. This finding by the trial court leads us to decline to consider petitioners' objection in this regard at this late date.

(1). ORS 331.010 provides that in all school district special elections a newspaper notice thereof

"shall be published in at least two issues," the last of which "shall be not more than 14 days nor less than eight days preceding the election." It is not denied that the notice was published in "two issues" of the newspaper. If we assume that a printing and distribution of the newspaper 16 days before the election is a publication of that newspaper only on the same 16th day, we have need to consider the merits of the respondents' claims which they have raised.*fn1 We do not accept this premise for the reasons stated in the footnote; however, we will briefly discuss the other merits of the question in the case at bar because that is the basis upon which it has been argued to us. Further, there is no evidence in the record showing the manner in which the newspaper was circulated after printing so a determination could be made of how long it was published.

We note that it was proved that in every other respect the notices required by statute were complied with and news media were extensively used to discuss

the upcoming bond election in such a manner that any citizen paying attention to the normal course of public affairs in the community must have been informed in all respects about the election. There was no evidence to the contrary.

Respondents place their sole reliance under this contention upon the decision in In Re Board of Directors of North Unit Irr. Dist., Gard v. Peck, 91 Or 33, 178 P 186 (1919), which involved a validating proceeding for an election that authorized the issuance of bonds by an irrigation district. The election was declared invalid by the Supreme Court because a notice of election was posted for one day less than that required by the statute. As ...


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