Honorable Denver E. Perkins        Opinion Number O-2088
County Attorney                    Re: Construction of the validity
Gonzales County                         of conditional election order.
Gonzales, Texas

Dear Sir:

          Your request for an opinion on the following question has
been received by this office. We quote from your letter as follows:

         "On August 19, 1938, the Board of Trustees of the Gonzales
    Independent School District passed an order calling an election
    for the purpose of submitting the question as to whether or not
    bonds of such school district should be issued for the purpose
    of erecting certain school buildings. At the same meeting at
    which the election was called the Board of Trustees passed an-
    other order reciting.that such election had been called; that
    an application had been made to'the Public Works Administration
    for funds to supplement the funds derived from the sale of such
    bonds, and that in the event the said grant was not received
    from the Public Works Administration the Board covenanted and
    agreed with the voters that said bonds would not be issued. No-
    tice of the election was given, but nothing was said in the no-
    tice in regard to the resolution not to issue the bonds in the
    event the PWA grant was not secured. However, in paid newspaper
    advertisements, paid for and signed by the said Board of Trustees,
    the statement was made that such bonds would not be issued if
    voted unless the PWA grant was secured. The election was held
    and it resulted in a majority vote for the issuance of the bonds.

         "The application for the grant from the PWA was denied for
    some reason. The Board of Trustees would still like to erect cer-
    tain buildings for the high school. They propose to hold a ref-
    erendum on the question as to whether or not the bonds shall be
    issued, even though no PWA grant was secured. They propose to
    hold this referendum at the time the regular school trustees are
    elected in April. If the referendum shows a majority in favor
    of the issuance of these bonds, even though no~PWA,grant was se-
    cured, then the Board of Trustees intend to proceed with the sale
    of these bonds. Assuming that the majority of the people voting
    at such trustee election and referendum are in favor of issuing
    the bonds, the question is whether or not the Board can legally
    issue them even though no PWA grant was received."
Honorable Denver E. Perkins, page 2 (o-2088)



          The order passed by the Board of Trustees on August 19, 1938,
which was prior to the election authorizing the issuance'of bonds, reads
in part as follows:

          'WHEREAS, application has been made to the Public Works Ad-
     ministration for a grant to supplement the funds derived from the
     sale of the above mentioned bonds;

          "NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
     GONZALES INDEPENDENT SCHOOL DISTRICT:

          "That in the event the above mentioned application to the
     Public Works Administration for a grant is not approved, Said
     bonds as authorized at the election, shall not be issued, and
     this Board hereby covenants and agrees with the voters that said
     bonds will not be issued unless the District receives a grant
     from the Public Works Administration."

         'The authorities seem to hold that the approval by the electors
of the proposed bond issue with whatever terms and conditions that the
governing body imposes thereon previous to the election, creates a status
analogous to a contractual relation. In construing a similar order
passed by a commissioners' court prior to a county-wide bond election,
the Supreme Court of Texas in the case of Black et al vs. Strength et al.,
246 LW. 79, said:

          "The order would nothave been made save,with a view to its
     being relied on by the voters. With the bond issue authorized
     by votes cast in reliance on the order, as must be assumed, it
     could not be arbitrarily ignored or repudiated without involving
     the perpetration of fraud or its equivalent on the voters.

          "Under these circumstances, the order was, in effect, a con-
     tract with the people, and good faith required that the contract
     be kept."

Any other rule would tend to undermine public confidence in the acts
of public officers. See also Golden Gate Bridge and Highway District
vs. Filmer, 21 Pac. (2d) 112; Perry vs. Los Angeles, 203 Pac. 992.

          Whatever might be the moral effect of releasing the Board
of Trustees from their promise not to issue the bonds unless the Pub-
lic Works Administration grant was received, the proposed referendum
election would amount to no more than a "straw vote" and would be in-
effective for any purpose since the qualifications of ,the electors who
vote on bond elections and those who vote at general trustee elections
are not the same. City of Houston vs. ,McCraw, 113 S.W. (2d) 1215.
(Texas Supreme Court, 1938).
Honorable Denver E. Perkins, page 3 (O-2088)



          Therefore, it is the opinion of this department that the Board
of Trustees cannot legally issue the bonds in question unless the dis-
trict receives a grant from the Public Works Administration.

           Trusting that this answers your question, we are

                                                 Very truly yours

                                           ATTOBNEYGENXBALOFTEXAS


                                           By /a/ Claud 0. Boothman
                                                  Claud 0. Boothman
                                                          Assistant

COB-s-lm


           APPROVED MAY 1, 1940

           /s/ Gerald C. Mann

           ATTORNEY OwERAt   OF TEXAS



                                     APPROVED
                                     OPINION
                                    coMMITl!EE

                                    BY /s/ BWB
                                      CHAIRMAN
