Untitled Texas Attorney General Opinion ( 1939 )

OFFICEOFTHEATTORNEYGENERAL OFTEXAS
T h e lleo tlo n o ff-
0 deo lAr Qdo o n-
sio a er r Ca tr t, Sa m0
a a sty Lla a Co twfma
ed suit la Distr ic t
dated trr,or the trustees from-
Sch-501Dfatrlat #4 aai~ to the
ependeat 9ahool and took tbe oath
ce as txw4t;ew In the Woo&3on Inde-
peabent Yckmol Dfotrlet. After ths Dlatriot
Court set aslds the ~oaaolldstlonardur, da-
olaring it ml1 an& void, the two trustees re-
oerted t)attii to tair Formr positions 88
.ton. T. 2. ?rlr&le, Kay 13, 1939, T'age2
trustee; cf :2uuatyLine Sxmon :Amol 3ls-
trict 24 kt::be:y~ to tracsact business ea
they did be-fcre they took the oat?.of offloe
et ~.?OGdYUC:n3epe11deat.;cZool. Cn the first
day cf Lpril, Comon ``c!iool Xstrlct '4 held
an electlcm fladelected three trustees. NOW,
what I want to know is which of these trus-
tees s?Yo!II.~.Trecomize to traxsact buslnesa,
the t!ree t?-&Ht was elected on the first or
April, or sf-.e old trustees that have be-
eatlag in that capacity all the tine? Did
the traete6a diaquelSrythemselvesrhea they
took the oath of offloe at lvoodsonto serve
ae trostees 0r the County Line Comma Sohool
nistriet #44*
When the Dlstriot Co&t by judgmeot set a8ide
the ooneolldatloaorder end deolsrea it au11 and void,
the OrrOot or such judgment wa8 to hold the county Llae
Comoa Sohool Distrlet #4 aad Woo&ma IadepemdeatSohool
Distriot were never In raot ooa8olidated. vfheathe two
trustees from the Couaty Liae Common Sohool Dl6+riot #4
quuliiled a8 trusteaa of the Woodaoa IadepeabentSehool
Dlstriat they no doubt purported to qualify as trusm
or the ConsolidatedDiatrlct, haowa by the nsme of ths
Iadepeadeataahool Dlstriot. See Article 8800, Revised
Civil Statutes.
The Dlstrlot Court, however, has held that
there ras no ooneolldateddiatriat and therefore.there
was no orfloe for uhloh these trustees aotlldqualuy.
The two school distriots retained the seme atutus whloh
they bed theretotorthad before the eleatloa, aad the
three old members continuedes trastees of the Couaty
Line Comma 3chool Nstrict ,#4as though no eleotioa hsd
been held to ooneolidats.
Artlole 2745 provides that on the first Saturday
la April of each yaar one trustee shall be eleated yho
shall serve for e terraof three years. It rurther pro-
vides that *all vecenaiea shell be filled by the aouaty
board of trustees for the rtmelnder of the term la whloh
ehe veaenoy OOOUF~.~
Eon. '7.:. Tri.s.ble,
gay i3, 1533s.'iaPe3
In :.mit!?vlj. Xorton Independent khool 9lstrlct
(T. C. A. 1935, writ disrhsed) 85 3.:' (2nd) 653, t;iecourt
?ield:
Vn April 7, 1X54, six new Lzmt!2er3 of
t.:e?su+d :vereelected. n. /;. hx+Jy beir,qtl-e
hold-over .zeTbcrol" the I!oar+of t'lrceSW%-
bor3 a3 it c*i.Std nt t?.e A,nteo? t!,eelec-
titin,83 str?teCr~bove,under tke 2~1-3on!.ytwo
nmbera could have been legaily elected. It
is said that: *The main design of election
la.79is to aecure a fair cxpreasicnof the
pop&zu will - t0 aSC8rt8d.n the will Of the
ale&ore and seOur8 the rights of the duly
qualified voters.. 16 Tsx. Jur. 1.035. It
the voters have the ri@t to elect only two
SMXIand the eleoticn is so ordered and oon-
duoted that Six are eleotad, the purpose Of
the low IS defeated. Xeith8r the el8OtiOn
authxitles nor the courts oan eay whloh tw0
or the six are de Jure OfiiO8rfL In our row
of goierllpont eleotions must be held,by virtrlie
of 801ri8legal authority, end an electidn held
without afiirinative Statutory authority or
.oontraryto a kaaterialprovision of the law
Is unfrarsallyheld to be a nullity. 23 C. J.
95, 380. 76; Simpson YS.~Taitlsr,176 Ark.
1093, 5 3W (2nd) SbO; Boone va. Gtat8, 10
Tc& App. 418, 98 Ann. Rep. 641. An irPe(rlular-
ity which afQ3ots the merits of the eleotion
and defeats the intended legal reeults if!a
nullity. 9 Rawle C. L. 1092; 25 Fi.C. L. 772,
Sec. 19.
"'We,therefore,corclu6s that the eleo-
tlon of six trustees of the Morton Indepan-
dent School District is not authorizedby law.'
There being no suco8Saor elected to the plaoe
of tha trustee whose term wa:?exIirlng there is a tacanoy
in sald office within the Beaning of krtiole 2745, oited
above an5 e trustee may he appointed by the County Board
Bon. T. :A Trimble, ?:ay13, 1939, i:age4
of school Trustees to fill said vacancy. Clark vs.
Xornell, (7. C. A. 193::) 65 3% (2nC) 350. However,
the old trUatee iOr Whom a swcessor WEQ not elected
shall coztiriueto hold wer and perform the Alties
of i:isof?%ce until his Buoo88sor has been duly eleot-
ed or appointed and qUalifi8d. Terad Co-!st.,/u-t.
XNX , ..ie
c . 17; cowan vs. Capps, 278 3% 283; >-,ateVS.
Zordan, (T. C. X. 1930, writ diSffiidJ8d) 28 YYi (Znd)
921.
It is tharefore our OpiniOn that the three
mwb0r8 of the former board OS trustees of the County
Line Common School District Ho. 4 donstitutede jura
mmbers of eald Board fullr qualified to act as suoh
with one vacancy subjeot to be filled by appolntmant
by the County Bo+wd of Sohool Trustees.
Yours very truly
ATTGRt?EY GENERALOF TEXAS
By & - AGrLM.A
+Oeo 1 C. Cama&
Asslatant
CCC:Al%
APPROVIUk