Untitled Texas Attorney General Opinion ( 1939 )

THEA'ITORNEY GENERAL
OFTEXAS
April 25, 1939
Mt-iE. W. Easterllng
CotiikyAttorney
Jefferson Cotity
Beaumont, Texas
Dear Sir: OplnloiiHo. 0415
Re: Sale of abandoned buildings and
geounas of-Rosedale Independent
School District
This department 1s in receipt of your letter of March 1,
1939, in which you request our opinion upon the questlbn of
what procedure should be followed by the Board of Trustees of
the.Rosedale Indepedent School District in Jefferson County
in disposing of abandoned school buildings and ~grounds.
.' Rosedale Independent School DlstrPct in Jefferson Cbunty
was created by Special Adt of the~Legl-slature,Speclal.laws‘6f
Texas 1919, 36th Legislature, Chapter 57, page 177. This Act
provides in part as follows:
"Sec. 10. The said Rosedale Independent
School District Shall have and exercise, and 1S
hereby vested with all the rlghts,'powers, prlid-
leges and duties of a town or vlllage~lncorpora-
ted under the general laws of the state for free
school purposes only, and the Board of Trustees
of said Rosedale Independent School Dlstrlct-shall
have and exercise and are hereby vested and charged
with all the rights, powers, prlvlleges and duties
conferred and imposed by the general laws of this
state upon the trustees of independent school dls-
trlcts including the rights to levy taxes and issue
bonds of the sala district to the extent for the
purpose and subject to all the provisions, llml-
tatlons and conditions that said power may now or
may hereafter be exercisable under the general
laws of the state by the trustees of the lndepen-
dent school dlstrlcts, incorporated and organized
-under the general laws of this state applicable
:to the towns-
and villages incorporated for free school purposes
only, are applied and declared to be in full force
and effect with respect toti~ said Rosedale Inde-
pendent School District.
Mr. B. W. Rasterllng, April 25, 1939, page 2 Q-415
“Sec. IS!” In all other titters not provided
foi. In thin Act the qald board of tiiuatees
shall be goveF'nedby thb General I&w& of the
State of’Texas, applleable to Independent School
DiBtriCtB,”
Thj.sact .doeiinot in exprdae terms grant ‘to the trustees
of such.district power to sell and dispose of 'BChObl property
and grbunda unless provided for by”the above quoted sect$ons,.r
We first consider t,hequestion of whether thatpart of section
10 which confer8 all the rights, posers, prlvlIsge.~and .dUtiOs
of a toVn or vlllage incorporated nnder the general lati'B&O:f
the state for free school purposes only upon the Rosedale 'dis-
+lct and whether the latter part of this section defining the
pC!WOPSOf ,ltBboarc,of trU&%s confers the power t0 8011 itB
bulldlngs and grounds.
We have made an extensive review of the leglelatlte
history of the .applicablestatutes, but without referring to
these various’enactments in great ‘detail,we note here that~
there la and .baebeen for many years a well defined dlstinetton
“between town6 and Villages ino’orporated,for free ~chool'piu-
poses only.?.and’ lndependdnt’dlatrlets ‘in,clfibsand ‘t&ins.
See Title IJXXVI’;Ch; 15’~“FreeSchools,ln~Towhs~k VlIlages”~
and Chapter 16 of the same t~ltle“Free,~Sc.hoolPj’~$n;
Incorporated
Towns and.‘Cities,‘R;.S:,l895;,Tltl~e’48;.
Chapters ,16 and 17;’’ :
Title’49,’Ch. '13,Subd~lv.lslons
R.8. 1911;’.- 2 and 3, ,B.S.,1925,
'Article 2773, R.S. 1925,'set otitbelow, fs klet?irfy
applicable te Inbe~e~.eat~‘DistrictsIn ,cltiOs‘a’s
'cOntI?aBtk!d
to ntown~ and v:llleges‘inocrRorated,
for free BChQOl purposes
only.n See A,@ie 1905.,p. 263..Ch’.124, See. 146.
ArtQole 2773’r&ids as folloys :
“nny h#u,Bea'
or.lalidsheld In trust by any
city'05 town for.public free school.purposes may
be sold for the'&poes of investing in more
convenient and.desirable school property, with the
consent 6f fhe"S$ate ‘Bo’ard,by the board of Trustees
of suqh city or,town;'snd, in such case, the:pre-
sident of the school board shall execute his deed
to the purchaser for.ttie.same, rdcitlrigthe re-
solution of the’State Board giving consent thereto
an& the resolutlan of the boa.rdof truateee an-
thorlelng such.sale.”
OrLglnal1.ythla statute gave the powerof ‘sale to the’
council or board ~of aldermen of incorporated oltles~and towne.
See Article 4033, R.5. 1895. But by section 146, Acts 1905, p.
Mr. E.W. Easterllng, April 25, 1939, page 3 o-415
263, this article was amended so as to vest this power in the
board of trustees with the name wording as the present Article
2773. ,. ,.
Sectlon~161, Acts 1905,'~. 263; provided that the
trustees Of towns oi'vlllaqes should be vested'wlth all the
powers, rights and duties 'that are conferred by the 1aWB
of this State upon the council ahd board of aldermen of in-
corp,oratedcltle~ and towns." As polnted out above, however,
the council and aldermen were divested of their power of
sale by this same act and such'power was placed In the board -
of trustees. This was the state of the law in 1919 when Rose-
dale Independent District was created, and we have therefore
concluded that since the council and board of'aldermen in
cities and towns did not have authority to sell school lands,
Section 161 of Acts 1905, p. 263 (Art. 2853, R.S. 1911) did
not expressly give trustees of schools under the laws relating
to towns and villages power to tie11such lands.. This being-
true, Section 10 of the Act creating the Rokedale District did
not'expressly confer the power to sell by making the laws ap-
plicable to town and villages apply to its trustees.
We also call attention to that part of Section 10'of
the Act creating the Rosedale District which provides tha~t-
its trustees shall be "stibjectto all the provisions, llml-
tatlons and conditions that said power may now or may here-
after be exercisable" under the laws applicable to'towns.and
villages lncorporated~for free act1001purposes on1 What 1s
now left of Stictlon161,-~ACts1905, p. 263.(Art. 2$"'
53, R;S.'-
lgll), cited above; and applicable to towns and“vlll⩾ Is
now contained in Article 2758, Revised Clvll Statutes, 1925,
and reads as follows:
"The said board of trustees of each of such
independent school districts Incorporated under
the provisions of this Act shall have and oxor;
else and are hereby vested wlth‘all the rights,
powers, prIvlleges and dUtiOB conferred and lm-
posed upon the trustees and boards of trustees
of independent school districts by the general
lawn of this State."
'Thus under both-section 18 and the latter part of Sec-
tlon 10 of the Act creating the Rosedale District, we must'de-
termlne the power of the trustees of independent school dlS-
trlcts generally to sell school buildings and grounds.
Article 2773 cited above applies onljrto certain lnde-
pendent school diBtriCtf3,and Article 2753 applies only to com-
mon school districts, and possibly independent districts having
a scholastic population of less than one hundred and fifty (See
Mr. B. W. Rasterllng, April-25/~1939, .psge 4. a-415 *
APtlale 2763, R.C.S., 1925), glVlmg'~Euehdi8triCts pOVdr to
sell school property. :Artlc~le2753a also purports to confer
authority to ~611 real estate but 18 llmlted to a sueclflc
population bracket. We have been udible to'flnd'any other
statutes expressly otmferrlng the.power,of sale upon lnde-
pendent districts..
TP'uethese,are “gen&%il laws of this State?bdt we.
canno~tascribe to,the &eglslature an intention that,all laws.
dealing withthe ~powersof trustees:whlch may be properly
classlfled as- "general lava" a8 dlstlngulahed from "special
'law's"
ihould apply to'.,tottna
and village8 or to the.Rosedale
Dlbtrlet. Sue6 a~conatructlon would lead to 8uch confusion
ati aonfllat an to be lmpoaslble of a~pllCat,lo'n.Rattiel’tie
think "the general lavs of this State as u8Od here means,
the laws applicable to independent school dlstrlots generally
or applicable to.dl8trlots of the 'same-class'towhich they
are to be applied. In either instance, the hbove atatutes
would not apply t.oth8 Rosedsle Blntrlct, tin&or the facts
which have been presented. :
The powers of lndepsndent school districts were-dls-
CUBBOd InThompson v. Elmo~IndependeritSchoolbletrlct;
(T';C.S.1925) 269 S.W. 869; and the court there expressed the
opinion that ,lndependentschool dlstrlite,are local pubJ.lc
eorporatlons of...the
name general cbaliac~ter-a,s
munlclpaI.cor-
poratlon8 but for ‘bchoolR``~OBBB only. ‘Pheyare etieatures
of’.thestatute8 and.thelr trustees are llmlted in exercise of
powers to those expresiilygranted, those necessarily lmplled
in or ireldental to powers expressly granted .and those essen~-
tlal to the purposes of the corporation - not'slmply~conven-
lent but lndlspenable. Any reasonable doubt aB to power ~111
be resolved against it.
School trustees are-‘, ubllc offlc~ers;Schers v. Tdlfer,
(T C A 1934) 74 8 W (,2p'327,&I'&it iB Etated in yt.
l&th'Caivalr ~blub v:~iheppard [Sup. et, 1935) 83 S.W~; (2)
9 publle offices or officers are ereaturesof.
The powers and duties of publio bfflcbrs are defined an8
limited by law.: Byebeing defined a.ndllmlted"by law, we"mean
the act of a public officer must be expressly authorlted by
law or lmplled therefrom."
In'general, Echo& trustees are glven'general eupervi-
alon, management and aontrol of the 8chooIs and school property
of their districts Mid legal title to such property is vented
in them, but we do not think a general power of management &%I
ccntrcl includes or lmplles a power to sell and dispose of the
.~property. Ordinarily, when the power to sell 1s not expressly
‘given; the tendency ‘ofthe courts has been not to extend the
__ . .
Mr. E.W. Eaaterling, April 25, 1939, page 5 o-415
authority by implication but to exclude such power. 2 Am.
JUr. p. 112. .
In Flkes v. Sharp (T.C.S. 1938) 112 S.W. (2) 774; the
cburt in determining that.school trustees had nbt therefore
had authority to do certain acts, took into conslderatlon'a
leglsltitlveconstruction evidenced by a subsequent act of the
Legislature granting that authorltg. We find just such an
enactment and leglslatlve construction ln this instance.
Acts 1929, 41st Legislature, 2nd CalledXiesslon, pa&e
133, Chapter 64, now appearing as Article 2753a, provide8 as
follol?8:
"An Act authorizing Independent School Districts
in certain classes of counties to dltiposeof real pro-
perty not needed for school property; and declaring
an emergenty:
"Be it enacted by the Legislature of the State of Texas:
"Section 1. In every county in this State hav-
lng a population accordlngto the latest United St&es
census of not less than 8,000 and not more than 8,100
each Independent School District shall be Buthol'lzed
to sell and dispose of any real property owned by
such district when in the oplnlon of a majority df the
Board of Trustees such property 18 not needed for
school purposes.
"Sec. 2. The fact that there are certain ln-
dependent school dlstrlcts in the class&s of counties
covered by this Act owning property which they do
not need for school purposes, creates an emergency-
and an imperative public necessity that the constl-
tutlonal rule requiring bills to bl read on threes
several days in each House be aiidthe same 18.hereby
suspended, and that this Act shall take effect and
be in force from and after its passage, and it 18
80 enacted."
If independent school districts have an inherent author-
ity to sell their real'property this was a useless act on the
part of the Legislature, andti passing the same, it has lndlcat-
ed that under its construction such authority did not thereto-
fore exist.
From what we have said, it necessarily follows that if
this question were presented to us as an original matter we'
would be unable to find authorleatlon for the Board of Trustee8
~dr.E.W. Easterllng, April 25, 1939, Page 6 o-415
of.thb Rosedale Independent School Dlstrlet to sellit8 bulld-
lngs and grounds.
U8 have &en able to find only one case which might be
considered as aiathorltyon thisapplliiabllltjTof.Artlcle 2773.
In R. B.'Spenceiz~'&
Co,"~v.Brbwti;St ‘al (1917) 198 S.X; 1179,
the El Paso~Court of~Clvl1 Appeals had before It for c6n$.ld-
erat'ion,the valldity~of a sale of school property belonging
to the Lln&l~vllle Independent School Dlijtrlct.'The cotit'
appll3d ArtPole 2873,R.0. 1911i which 'isthe present Article
2773 and stated:
"Artlele 2846 has no appllcatlon,.because
the school dlstrlct was an 1ndLpendent school
dlstrlct; Bald article appear8 in the~Revl86d~'
Statutes in'ohapter 15, title 48. This chapter
relate8 t0 ccmmon school~di8tslCt8, Orlgl~lly
thl8 article was section 66 of chapter 124, Acts
bf the Twenty-ninth Leglalature p. 263:' It'there
apDdar8 under the sub-title 'School'HOUi'esand
SQool Supplies I i3fthe title 'Common School
Ble'trlsta'. It 18 thus manifest that this article
-I'elatesto the sale of property belonging to com-
mon sahool districts.
"The sale of 8chool property belonglng'to
t.he~Llnglevllle independent school district Is,
however, governed by the'~proVlsiah8Of article
2873, R.S. which retiulresthe consent of the
State Board of Education."
The opinion do98 not'dlselo~e the heture'of th6 Lfagle-
vi118 Independent School Dlstrlot but we have asoeFti?ilnad
from
an independent investigation that Ll&feville Independent "
'SchoolDistrict in Erath County wB8 created iti1912 as a'town
or village incorporated fcefree tichoolpurpoirebonly uiidbti-.
the provisiOns of Seotlon.l?g, C@Eipter124, Aets 29th'~L6gGla-
ture, Regular Session, 1905. Tk& opinion also fails-to dltiEtis8
the basis upon whlah the Court applied the then Artle1.e2873:
In 1919 the Supreme Court refused a writ Of error on as-
signments of error raising other questions that those present-
ed'here, and Hawkins, J. fkled a lengthy dls8enti~'bpinlOn,
t;;i.;,v.Faust,, (Sup. Ct. 1919) 212 S.V. 608, in whl.chhe .
:
I'+* + but in my opinion, neither that
principle nor those authorities are applicable
'in this state to auoh a contract for the sale
of a building owned by an independent school
Mr. B.W. Rasterllng, April 25, 1939, Page 7 O-415
district (whose poweri of disposition of school
property seem to'be narrowly and quite rigidly
re8tFiCted by law), and especially $0 when such
Contract 18 not,8hOWn to"have been fully executed.
R.S. art. 2873, which ~83 held by the.CCpurt
6f Civil Appeals to be appllcab;e+(tcl perhaps
correctly SO), 18 a0 fOllOW8:
"Upon these somewhat Complex questions
there seems to be no direct previous deCl8lOn
of this court or of any of our Courts of Civil
Appeals.
"The entire power and authority of local
school board8 wlthln the optiratlonof Article
2873 (lnclualng pershaps all independent 8ChOOl
district boardsj appears co rest on that statute."
Until an opinion of tiCourt of Civil Appeals 1s over-
ruled or the basis upon which lt rests clearly appear8 to~tiave
been changed we feel compelled to follow the holding of such
oplnlon without taking into ConSideration the weight which
might be given to it should the question again reach our appel-
late courts.
You are therefore advlaed~that the proper procedure to
be followed by the Board of Trustees of the Rosedalh Indep6nddnt
School District in Jefferson County in sellin& abandoned adhool
buildingi and'grounds 1s that set out in Article 2773, Revised
Civil Statutes, 1925.
Yours very truly
ATTORNEYGENERAL OF TEXAS
By s/Cei:llC. Cammadk
Cecil C:Cammack
'ASSlStant
ccc:LM
APPROVID: ..
s/Gerald C. Mann
ATTORNEY GENERAL OF TEXAS