Honorable F. B. Caudle
County   Attorney
Franklin County
Mt. Vernon, Texas                       Opinion Mmber O-1303
                                        Ret Does the~Board of Trustees
                                        have authority to designate poll-
                                        ing places in bond elections for
Dear Sir:                               an independent school district?

            We are in receipt of your opinion request and quota from your
letter as follows:

            "In an election to determine the issuance of bonds
     for an independent school district wholly within a Justioe
     Precinct and containing the entire city limits of a toam, by
     an order of the Board of Trustees ordering the election, the
     courthouse was designated as the only polling place. The
     Justioe Precinct in which the independent sohool district
     was located had four voting precinots. All the votes in the
     independent sohool district election were cast in eleation
     Precinct k. 2.

              "First: In view.& Artiale Six, Se&ion Three-A of
              the Constitution, would any of the votes be counted
              exoept those residing in Precinat No. 21

              "Secondr Article 2708, R.S. 1926 authorizes the
              Board of Trustees to designate the polling plaaes
              and the order~did designate the courthoWe a8 the
              polling plaoe; would Article Six, Section Three-A
              of the Constitution, or Article 2768, R.S. 1926
              dontrol?"

              Article 6, Se&ion   Sa of the Constitution reads p8 fOlloWat

              %hen an election is held by aqy county, or any
              number of aountiss, or any political subdivision
              of the State, or my political subdivision of a
              county, or any defined district nov?or hereafter
              to bs described and defined within the State and
              which may or may not include tams, villages or
              munioipal corporations, or any city, town or vil-
              lage, for the purposs of issuing bonds or other-
              wise lending oredit, or expending money or
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Hon. F. B. Caudle - Page 2 (0-13X)




              assming any debt, only qualified eleotors
              who own taxable property in the State, oounty,
              political subdivision, district, city, tom or
              village where such eleotion is held, and who
              have duly rendered the same for taxation,
              shall be qualified to vote and all electors
              shall vote in the election precinct of their
              residenoer*

           Article 2788 reads, in part, as follows:
           * e . * The election for said bonds shall be held with-
           in thirty days after order of election, as fixed in the
           eleotion order. The board of trustees shall at the seme
           time fix the polling plaoes for holding such election
           and name a judge and tm clerks at each polling place
           . . ."

            A11 independent school districts are created for free school
purposes aud their affairs arc managed by a board of trustees. The Consti-
tution provides that in all bond elections the electors shall vote in the
election precinct of their residenoe. There is no provision in the Consti-
tuticnrwhich expressly prohibits the Legislature from providing.that when
a defined territory is incorporated into en independent school district it
shall constitute an eleotion precinot for all elections held for school
purposes8 and in the absence of an express provision in the statute, author-
iaing such districts to that effect, we think it will be implied from the
very nature of the case that it was so intended.

            We are therefore of the opinion that for the purpose of voting
on the iesumoe of bonds or for the purpose of voting oa all questions
affecting the interest of the public sohools within en independent school
&&riot,   such territory legally constitutes a residence voting preoinct
&thin the meaning of the Constitution, the polling plaoes to be desi&ated
by the school~tnretees as provided in Artiole 2788* See Parks et alvs.
West, 108 S.W. 466.

            But if we are mistaken in this view of the law in holding that
an independent school district oonstitutes a re.idenoe voting precinct in
detemining whether or not bonds should be issued and polls should have
been opened at all four voting precincts within the district,we feel oer-
tain that the courts would not invalidate the election where the board of
trustees, whose duty it is to designate the voting places, made an error
in naming only one, unless it bc show that they acted with a fraudulent
purpose.

            It is a canon of the election law that an election is not to.be
set aside for a mere formality or irregularity which oan not,bc said iu any
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            Hon. F. B. Caudle - Page 3   (o-1303)



            manner to have affected the result of the election. Courts are enxious
            rather to sustain than to defeat the popular will. Dillon Xunicipal Car-
            porations, Fifth Ed., Vol. 1, p. 642.

                           Corpus Juris states the rule as follows: "That where the
            polling place selected by the proper officers is outside the election dis-
            trict vho vote thereat arc not disfrsnchised on that account if the eleo-
            tion is otherwise lawfully conducted. Evenwhcre the Constitution of the
            State restricts the right to vote to the election distfiot wherein the
            elector resides, yet where a distinction between an eleotion district and
            an election precinct is recognized, votes cast at a polling place outside
            of the precinct but within the district arc not to be rejected." 20 Cor-
            pus Juris, 102; Davis vso State, 12 S.W. 857; Ex parte Stein, 135 S.1. 136.

                           In Ek p6rte Write, 28 S.K 542, the election precincts of a
            tom were laid off from the aourthouse sE(uarc,the courthouse not being in-
            cluded in any ofthem, the votes wsre cast in different roaas of the court-
            house, the court held that the Constitution, Article 6, Section 2, provid-
            ing that electors should vote in the precinct of their residence, did not
            invalidate the election.

                           In view of the foregoing, it is.our opinion that the votes
            of all the legally qualified voters of the school district voting at the
            plaoe designated asthe polling place by the board of trustees should be
            counted.

                                                      Very truly yours

                                                    ATT0RNE.i   GENERAL OF +JXXAS

                                                     By
                                                          s/Claud 0. Bootlxaan

                                                             Claud 0. Boothman
                                                                   Assistant
            COB:sregw

            APPBOVED SEP. 1, 1939
                                                      Approved Opinion Committee
            s/Gerald C. Mann                          By EWE Chairman
            ATTOFUJEXGENKW, OF TEXAS
