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        Honorable          Charles           S. McMillan
        County     Attorney
        San Augustine             County
        San Augustine,               Texas


        Dear     Sir:                                                            Opinion         No.     O-3393
                                                                                 Re:      (1)    Whether           a ballot           is void
                                                                                         and      should        be counted             in a
                                                                                         school         trustee         election        where
                                                                                         there     are         three     names          on the
                                                                                         ballot        where       only     two trustees
                                                                                         are      to be elected.                (2)     Has
                                                                                         Article         2808,     R.     C.    S., been
                                                                                         amended          by Acts          of the 41st
                                                                                         Legislature,              1931,        5th C.     S.,
                                                                                         p. 212?          (3)     Under         the facts
                                                                                         given         is the school            trustee
                                                                                         election         void 7


                                We    have     rkceived             your   written       request         for     an opinion            from      this
        department.              We    quote         from     your     first     request:


                                “I would       like     to request           an opinion         on the following                 question:


                                “‘Whether            a ballot        is void     and    should         be counted          in a
                     school          trustee     election           that has      the names            of three         persons
                     on the ballot             for    trustee         offices     where         only    two      trustees         are
                     to be elected?’




                                “Due     to my limited               library      I am        unable     to determine
                     whether           Article        2808 of Vernon’s                 Ann.     Civ.     Statutes         has     been
                     amended,            and     it is very           important         in determining                 another        ques-
                     tion       that would           arise      if it has       not been        so amended              by the 41st
                        Leg.,    5th C. S.,           Ch.     66, Acts         1929.”


                                We    also     quote         from     your      supplemental             request         furnishing           us
        additional         information           as     follows:
                               .
Honorable         Charles           S. McMillan,            Page         2, O-3393




                      ““This       is to advise        that the Lucas               Consolidated             School
            District         No.     34 is a consol.idation                   of common            school      dis-
            tricts.        It is in the country.                       The   election       order     and notice
            submitted              the election        of two trustees.                 The    third     candidate
            was       merely         a candidate           for     the two       elective      places.


                      “Now         here    is what      happened.               There     were       three      candi-
            dates      for     two elective            places.           There     were       other     candidates
            but only         three        names      were         printed       on the ballot,         and they
            are;‘is     .follows:


                      “Vaughn         Lakey
                       Tom         Rayburn
                       Norman             Williams


            In the meantime,                  that   is,    between           the ti.me the         election          was
            ordered          and held,           a member              of the board         of trustees         of the
            school       district          resigned.         His         name    was    T.    W.     Lakey.         When
            the     time       to vote      arrived,         a majority           of the voters             voted      their
            ballot      as     follows:


                      “Vaughn         Lakey
                       Tom         Rayburn
                        Jay Gardener               (Write         i,n)


            Some        voted       as    follows:


                      “Vaughn         Lakey
                        Tom        Rayburn
                        J. W.        Bryant       (write         in)


            Others         voted      as    follows:


                      ‘“Vaughn           Lakey
                       Norman             Williams


            Then       when         the time       to tally        came,        the election         officer        counted
            all the ballots   i.n one group  that voted for                                 two     trustees,         in another
            group,  the ballots    cast for three trustees.


            It seems that the majority                            of the ballots were   cast for three                         trus-
            tees.  The election officer                           made his returns    in the following                         manner:
.   -




        Honorable            Charles          S. McMillan,           Page        3, O-3393




                      “Vaughn          Lakey                                          61
                       Tom       Rayburn                                              42
                       Gay      Gardener                                              41
                       Norman           Williams                                      17
                       J. W.        Bryant                                                6


        The      commissioners                 court       canvassed          the returns             as    follows:


                      ‘*Vaughn         Lakey
                       Tom       Rayburn


        My     main     conc.ern         is whether           the Article           referred             to in my former             opin-
        ion is the law.              In other        words         you    have     two        articles       governing        the elec-
        tion     of school       trustees           in a consolidated               school        district        as the one above.


        Another        concern         is whether            the ballots          that had the names                    of three      trus-
        tees     on them        were         void    if only       two trustees            were       to be elected.


        Whether        the facts          warrant          the construction               that the whole               election      was
        void.”


                               We     first     consider        the question              of whether            or not Article             2808,
        Revised        Civil     Statutes,           1925,     has     been      amended           or      repealed.        Said     Article
        provides        as     follows:


                               “The      board       of county           school     trustees             at its next       meeting
                      after     such      consolidation              of school        districts             is declared,          shall
                      appoint        a board         of seven        trustees        for       the consolidation              district.
                      No     person       shall      be trustee           who     cannot         read       and write       the Eng-
                      lish     language         understandingly,                 and who          has       not been      a resident
                      of this       State      one year,        and      of the district              six     months,       prior     to
                      his     appointment            or election.             The    terms          of office         of three      of the
                      trustees         so appointed            shall      expire      on the first              day    of May       next
                      following         their       appointment,             and the terms                 of office      of the other
                      four     trustees         shall       expire       on the first           day      of May        of the succeed-
                      ing year,         as     those       so appointed           shall        determine          by lot.      Each
                      year      thereafter           alternately          three     trustees             and    four    trustees          shall
                      be elected          by the qualified               voters      of the district                on the first          Sat-
                      urday      of April           and    trustees        so elected            shall      enter      upon   the dis-
                      charge        of their        duties      on the first          day       of May         next    following          and
                      serve      for     a term           of two     years      thereafter.                District     trustees          shall
                      qualify       by taking          the official          oath which            shall       be filed     with     the
                                                                                                                                               -      .




Honorable          Charles          S. McMillan,                  Page       4, O-3393




            county          superintendent                  of the county              wherein           the distri,ct             Is
            situated.               The     board          of trustees             after     bei.ng         quali.fied       shall
            immediately                  organize           by el,ecting             one     of their         number         presi-
            dent     and another                 secretary:,             a report          of which           organizat.ion
            shall         be filed        with     the county               superintendent.                   The     board         of
            county          school         trustees          shal,l, fill. any             vacancy          by appointment
            until     the next            regular           election         for     district         trustees.            The
            board          of trustees            of the district                 shall     appoint          three       qualified
            voters          of the        district         to hold         sai.d .election            and     make         returns
            thereof             in like     manner           as     provi.ded         by law          for     holding        elec-
            tions         for     trustees        in common                 school         districts,          except        that        the
            persons             holding         said       election         shall.    each       receive         two       dollars
            a day         for     such      services.”


                  The Forty-first Legislature,                                  1931, 5th Called                    Session,             Page      212,
enacted      Senate  Bill No. 30, the caption                                 of which provides:


                     “An Act             providing           for    the appointment                     or election           and term
            of office            of school         trustees           in all        independent              districts        having
            fewer         than      75,000        population              by the Federal                 Census            of 1920 and
            for     all     consolidated                and       rural      high      school         districts;           adjusting
            the term              of office       of trustees               now      in office;         providing            for        filling
            of all        vacancies;             providing            for    the date           of first       election          under
            this     Act;         repealing          all     laws      both        general       and        special        in confl.ict
            herewith,             and declaring                  an emergency.*                     (Underscoring                  ours)


                     Section            3 of the same               Act      provides:


                     ‘“Sec.        3.     The     board          of county           school         trustees          at its next
            meeting             after     the consolidati.on                  of school          districts            is declared
            shall     appoint            a board           of seven         trustees          for     the consolidated
            district.             No person            shall       be trustee             who    cannot         read        and write
            the English             language            understandi,ngl,y,                  and who           has     not been            a
            resident            of this      State         one year,          and     of the district                six    months,
            prior         to this       appointment                or election.              Those          elected        at the first
            election            shall     determine              by lot the term                for     which        they     are         to
            serve.          The         three     members              drawing            numbers            one,     two and
            three         shall     serve        for       one     year,      the two         members               drawing             num-
            bers     four         and     five    shall        serve        for      two    years        and the two               mem-
            bers  drawing  numbers   six and seven shall  serve   for three years,
            or and until their successors   are elected  and qualified;   and regu-
            larly     thereafter                on the first           Saturday            i.n April         of each        year         three
            trustees            or two trustees                  shal.1 be elected                for       a term         of three
.   .




    Honorable     Charles           S. McMillan,                 Page       5, O-3393




                years       to succeed              the trustees               whose        term      shall         at that time
                expire.           The      members               of the board           remaining               after       a vacancy
                shall      fill    the same              for the unexpired                  term.         District           trustees
                shall      qualify         by taking            the official          oath which             shall        be filed
                with     the county               superintendent                 of the     county         wherein           the dis-
                trict     is situated.               The        board       of trustees          after        being         qua1ifie.d
                shall      immediately               organize              by electing          one of their                number
                president           and another                 secretary,           a report         of which            organization
                shall      be filed         with     the county              superintendent.                    The      board       of trus-
                tees     of the district                 shall     appoint          three      qualified            voters        of the
                district          to hold         said     election         and make           returns           thereof          in like
                manner            as provided              by law        for     holding       elections            for     trustees
                in common               school       districts,            except       that the pers,ons                   holding
                said     election           shall        each      receive          from      the general               fund      of the
                county       two      dollars            a day     for      such      services.”


                         Section           5 of the same                Act,       in part,     provides:


                         “Sec.       5.      The     first        election          under      the provision                 of this       Act
                shall      be held          on the first            Saturday           in April,          1931.         * + * and           in
                all    consolidated               and      rural     high        school       districts           in which           the
                term       of office         of three            elective          trustees         expire        in 1931,          their
                successors                shall     be elected             for     a term       of three            years.          * * *
                In all     such       districts            in which         the term           of office          of four         elec-
                tive     trustees           expire         in 1932,. after            their     successors                  are     elected,
                they     shall       determine              by lot which             two      members               shall      serve           for
                one year           and which             two      members             shall     serve         for     three        years.
                Those        members               drawing          numbers            one and         two       shall       serve          for
                one year;           those         members            drawing          numbers             three         and four          shall
                serve       for     three         years,         and annually              thereafter            ei.ther       :thmree trus-
                tees     or two trustees,                   as the case              may      be,     shall       be elected              to
                serve       for     a term          of three         years.


                         “In all          such      independent,               consolidated               and    rural        high
                school       districts             in which         the terms           of office          of four          elective
                trustees           expire         in 1931 their              successors              shall       determine             by
                lot which           two     shall        serve       for     two years          and which               two       shall
                serve       for     three         years.          Those          members            dr.awing          numbers             one
                and two           shall     serve         for     two      years       and     those       members                drawing
                the numbers                three         and four          shall     serve      for       three       years,         and
                annually           thereafter             either        three       trustees         or    two      trustees          shall
                be elected           to serve            for     a term          of three      ~years.*
Honorable           Charles           S. McMillan,               Page        6, O-3393




Senate       Bill      No.       30, supra,            is carried        in Vernon’s               Civil     Statutes         as Article
2774-a.


                            A consideration                of the two Acts,               quoted           above,     clearly         shows
that they        are       on the      same        general         subject.          It is clear            that the Act            last
quoted       intended            to change         the number             of trustees           to be elected               annually          and
to change           their      tenure       of office          as well        as to provide            a different            method          of
selecting        a trustee            of a consolidated                 school       district         where         a vacancy          occurs.
We     believe         that there           is no doubt           but what        the two Acts               are     inconsistent             and
irreconcilable                in so far        as the       selection          of trustees,            their        tenure      of office,
and the filling               of a vacancy              is concerned,            and    to that extent,               we     believe         that
the later        Act,       by    implication,            repeals         the provisions               of Article            2808.          39 Tex.
Jur.     139.


                            We    have       con,sidered           the case          of Plains         Common               Consolidated
School       District          No.    I of Yoakum                County        v. Hayhurst,            (Civ.        App.)      122 S. W.
(2d)     322, which            seems        to hold        that the pro’visions                 of Article            2808 are             con-
trolling        in so far         as the election                of trustees           of a consolidated                common               school
district      are       concerned            as well        as the filling             of a vacancy                on the Board              of
Trustees.            Since        the opinion            does     not show         whether            or not Article                2774-a         was
called      to the court’s               attention         and     in view       of the provisions                   of the two Acts,
which      we have            already        discussed,            we    do not believe               that     the case,            referred          to,
is authority            for      holding       that Article             2808 has        not been            repealed,          by    implication,
by the provisions                   of Article           2774-a,        supra.


                            Upon      the facts          submitted           by you,      we       agree       with     your        conclusion
that the resignation                   of the trustee              and the acceptance                      of his     resignation             by the
Board        of Trustees,             did not terminate                  his     status       as    a trustee          until    his        succes-
sor    has      been       duly      appointed           and     qualified       in the manner                 required         by law.            In
our    Opinion          No.      O-1432,          we    discussed            the same         question             and quoted         from         Plains
Consolidated             School        District          case,      supra,       for    authority.             We     are      enclosing            a copy
of Opinion           No.      O-1432        for    your        consideration.


                            We     now      consider           the effect        of more           than      two names              being     printed
on the ballot.


                            Article         2774-a,        which        we    have     held        to be applicable,                provides,
in part:


                             “The     Board        of Trustees               of the District               shall     appoint        three
                 qualified            voters        of the district            to hold said            election         and make
                 returns            thereof        in like manner               as provided            by law         for holding
                 elections            for    trustees          in common             school         districts.         * * **
Honorable          Charles       S. McMillan,           Page         7, O-3393




                       Article        ‘4746,    Revised         Civil      Statutes,            1925,    is a statute              provid-
ing for     the conduct          of a trustee          election          in a common               school         district.         This
article    does      not refer         to ballots.


                       Article        2746-a,        Vernon’s           Civil     Statutes,         provides:


                       “A11 of the ballots              for     the election             of a school              trustee      in
              common           school      districts          and     in independent               school         districts
              having         fewer      than five      hundred           (500)     scholastics               as     shown
              by the last            preceding        scholastic           census         roll     approved            by the
              State     Department             of Education             and exclusive               of transfers
              shall     be printed         with       black        ink on clear           white      paper,          of
              sufficient         thickness         to prevent           the marks              thereon         being      seen
              through         the paper,         and be of uniform                     style     and dimension;                at
              the top of the ballot                there      shall      be printed              ‘Official        Ballot,
                                               Independent            School       District,.’          the number             of
              name       of the school           district           in which       the election               is to be held
              to be filled           in by the judge            of the county             when       he orders               the
              ballots        printed.      * * +v


It will   be noticed          that the statute,             last     referred           to, does        not specifically               say
how    the names         shall       be placed        upon      the ballot.


                       It was     held     in the case             of Scherz           v. Telfer,        (Civ.       App.)         74 S. W.
(2d)   327,   as    follows:


                       “We     find     nothing       in the statute             expressly           excluding            from
              the provisions             of the election              laws      the election            of common
              school      trustees.            The    election          of such         trustees        is,       of course,
              undoubtedly             controlled        by the provisions                      of articles          2745,
              2746,      and     2746a     in all      matters          and things             covered         by the pro-
              visions        of said      articles.           But    it is manifest,               we    think,        that
              in all     other       matters         not covered           by     said     articles           the provi-
              sions      of the Terre11              Election        Law        would      apply.       0 * t”


                       Article        3018,     Revised         Civil      Statutes,            1925,    of the Terre11               Elec-
tion   Law,    provides:


                       we * *        If the names           of two        or    more       persons            are    upon      a
              ballot     for     the same         office,       when       but one        p’erson        is to be
              elected        to that office,          such      ballot         shall     not be counted                for
              either      of such        persons.”
Honorable              Charles       S. McMillan,                Page       8, O-3393




We      think     the above          statute        is applicable                to your          proposition.


                          In 16 Tex.              Jur.     111,     112, the rule              is well            stated      as follows:


                           “It is further               enacted      that,        if the names                   of two      or     more
                  persons          are     upon         a ballot     for     the same              office,         when       but one
                  person          is to be elected               to that         office,      the ballot            shall         not be
                  counted          for    either         of such     persons.                The       language            of this
                  statute         is mandatory.                 Hence,       a ballo              which          contains           the
                  names           of two     persons          as    candidates              for     the      same          office,
                  neither         of which         has     been      erased          cannot          properly             be counted
                  for    either          of the candidates.                 If the name                of a candidate                 for        a
                  designated             office     is on a ballot               and       is not scratched,                   the fact
                  that the voter             has        written      in the name               of the person                  for     whom
                 he desires              to vote,        while      showing          the intention                 of the voter,
                  cannot         override          the plain        direction              of the statute.                 The       vote
                  is    illegal      and cannot            lawfully         be counted.


                           ‘But      where         the intention            of the          voter      to scratch             one name
                  is clearly             shown,         though     the name            was        not entirely              obliterated,
                 and      another          name         is written         in at’the          proper             place,      the ballot
                 will     be counted              for    the name           so written              i.n.    And,      although              the
                 statute          provides         that the name                 of no candidate                   shall     appear
                  more        than       once     upon      the official           ballot,          except         in a certain
                  instance,          if the name            of a candi.date                 i,s written            i.n although             it
                 already           appears         printed         on the ballot,              the ballot             is not rendered
                  invalid.*


                          We       think     the above            quoted         statutes         and authorities                    clearly           con-
template         that after          the     voter,        under      the facts             submitted             by you,          has      been        handed
a ballot        that     it is incumbent                 upon      the voter,          if     his      vote       is to be legally                    counted
and allowed,             to see      that not more                 than     two      unscratched                  names           appear             up on said
ballot.      You        are    therefore            advised         that all        ballots         which          were       handed             to the elec-
tion    judges         by the voters              upon      which       there       appeared               more       than two              unscratched
names       are        void    and       should         not be counted.                We     also         beli.eve        that those                ballots
that had        only     two       unscratched             names          left    on them           when          they      were      handed             to the
election        judges         by the       voter        should      be allowed              and       counted            and that same                  are
valid     ballots.            From        the facts        submi,tted            by you,          we       are     unable         to determine,
upon      the basis           indicated         above,       how      many         ballots          were          properly           cast        in the
_   -




    Honorable      Charles     S. McMillan,       Page     9, O-3393




    election     inquired    about   which     of course    would     determine       who     waci dul,y
    elected.


                       From     the facts      submitted    by you,    we    do not find        anythi,ng   which
    shows      that the election     is void    as a matter     of law.


                                                                            Yours      very     truly


                                                                    ATTORNEY              GENERAL       OF    TEXAS


    FIRST      ASSISTANT
    ATTORNEY          GENERAL
                                                                            Harold        McCracken
                                                                                    Assistant
    HM:RS
    ENCLOSURE


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