            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&ges; 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
