Hurdle v. State ex rel. Harding ( 1923 )

Smith, C. J.,

delivered the opinion of the court.

This is a proceeding in the nature of a qúo warranto to determine the right of the relator and the defendant, Hurdle, to the office of trustee of the Taylor consolidated school district of Lafayette county. The cause was submitted to the judge of the court below for trial without a jury on an agreed statement of facts (the first, second, and third, paragraphs of which the reporter will set out in full), and resulted in a judgment for the relator, from which the defendant has appealed to this court.

The statutes providing for the filling of vacancies in the office of trustee of public schools are sections 4504. 4519, and 4520, Code of 1906, the same being spCW s 7581, 7339, and 7340, Hemingway’s Code. Each ,-r mese sections provides for the filling of such vacancies in different language, and the provision therefor in section 4519 (7339) is in conflict with the provision therefor in the other sections. These provisions are:

Section 7581 (4504) : “When from such cause, or from death, resignation, or other cause, a vacancy in either of the above-named offices [teacher or trustee] occurs, it shall be the duty of the county superintendent, within ten days after the vacancy occurs, or as soon thereafter as practicable, to supply the samé by appointment.”

Section 7339 (4519) : “If, from any cause, a vacancy occurs in the office of trustee, outside of a separate school district, the county superintendent shall fill the same by appointment, unless the patrons thereof shall fill the same by an election within ten days after such vacancy occurs.”

Section 7340 ( 4520) : “If from a failure to qualify, or from other cause, there be a vacancy in the office of trustee, outside of a separate school district, the county superintendent shall fill the same by appointment, in writing; and the trustee so appointed shall hold office until the end of the vacant term, and until his successor be elected.”

It will not be necessary for us to determine which of these statutes controls the filling of vacancies of the office of school trustees, for the reason that the provision in section 4519 (7339) for'the filling of such vacancies by the patrons of the school by election is incomplete in that it does not provide for the calling of such an election and the giving of notice thereof to the patrons of the school, which omission is not supplied by any other statute. In order for a public election to be of any legal efficiency it must be held at the time and place designated either by law or by the authority to which the right to designate the time and place is delegated by law. And — “it is essential to the validity of an election that the electors have notice thereof in some form, either actual or constructive, such as a notice in fact, or by proclamation, -or by statutes of which they are bound to take notice.” 20 Corpus Juris, p. 96.

We are not called on here to determine whether an election under this statute would be valid when participated in by all of the patrons Of a school; no such case being here presented.

It follows from the foregoing views that the election at which the patrons of the school sought to fill the vacancy in the office of trustee of the school here in question is void, and that the appointment of the appellant by the county superintendent to fill the same is valid.

Reversed and judgment here for the appellant. .

Reversed.