Opinion
No. 29447.
May 12, 1931.
SCHOOLS and SCHOOL DISTRICTS.
Two school trustees present at meeting had no authority to elect teacher, though the absent trustee subsequently signed certificate of election (Code 1930, section 6629).
APPEAL from circuit court of Quitman county; HON.W.A. ALCORN, Judge.
T.N. Gore, of Marks, for appellant.
Mr. Abernathy, one of the trustees, was the husband of the petitioner, and therefore expressly disqualified to vote for her in an election of teachers. Mr. W.W. Horn, a tenant on Mr. Abernathy's place, was also a trustee, and the record shows that no regular formal meeting of the board of trustees was had for the purpose of electing a teacher.
The record also shows that Mr. Stanford, the other trustee, had no notice that a meeting was to be held for the purpose of electing a teacher, and in fact did not at the time know that he was a trustee; and that Mr. Abernathy carried this certificate which had been signed by Mr. Horn and himself and presented the same to Mr. Stanford, who upon being informed that he was a trustee, merely signed the certificate, giving his consent for Mrs. Abernathy to be the teacher for the ensuing year.
An informal action or agreement without a regular meeting is invalid.
24 R.C.L., page 576; section 6629 of the Code of 1930.
It is clear from the facts shown by this record and from the law that the petitioner was not lawfully elected as a teacher.
Lowry Lamb, of Marks, for appellee.
It is perfectly apparent from this record that the appellee was the choice of the superintendent as well as the trustees and patrons.
Section 205 of the constitution requires that "a public school shall be maintained in each school district in the county at least four months during each scholastic year." This constitutional provision has been held uniformly to be mandatory.
State Board v. Pridgen, 63 So. 416; State v. Morgan, 106 So. 820; Myers v. De Soto County, 125 So. 718.
The trustees of the district are required to elect a teacher and if they fail "the superintendent shall appoint a licensed teacher."
Hemingway's Code 1927, section 8710; Code 1930, section 6629.
The brief for the appellant discusses only one question, viz., the regularity of the election of the appellee by the trustees. It assumes that because there was not a formal meeting of the trustees with notice to all of them, their action was void.
If this question had been timely raised by the superintendent so as to allow a correction of error, or if the action at the informal meeting had not been concurred in by all of the trustees, there might have been some ground for this defense.
In the case at bar, there was a formal meeting of the board at the proper time at the schoolhouse of the district for the purpose of electing a teacher there being a quorum present but no notice was given of the meeting to the third member of the board who, it seems had been appointed, but had received no notice of his appointment.
Emphasis is put upon the fact that one of the trustees who met to elect the teachers was the husband of the teacher elected and could not vote for her.
The record shows that he did vote for her, but his vote, of course, being illegal could not be counted. However, where there are two voters and one of them does not vote then the vote of the other is the majority. We readily admit that at the instance of the absent member, this would be voidable, but where he concurred and still concurs, it is different.
If this alleged election was not binding, it was made so by ratification, either by the trustees or by the superintendent it became thereby a binding election.
Appellee claims to have been elected, in March, 1930, a teacher of the Oakdale public school in Quitman county for the ensuing scholastic year. Appellant, as county superintendent of education, refused to recognize said alleged election, and a proceeding in mandamus resulted.
The facts in respect to said alleged election are as follows: Mr. B.S. Abernathy, the husband of appellee teacher, is one of the three trustees. On the day on which it is claimed the election was had, Mr. Abernathy sent for Mr. Horn, another trustee, to come to the schoolhouse, and there these two trustees attempted to elect appellee. Mr. Stanford, the other trustee, was not notified of the said meeting, nor was there any effort to notify him, and he was not present; but later Mr. Abernathy took the certificate of election to Mr. Stanford, who made no objection and signed it.
Making only a casual reference to the fact that Mr. Abernathy, the husband of the appellee, was disqualified under section 6629, Code 1930, from voting for his wife, it is admitted that only one other trustee than himself was present or had been notified of the meeting. To such a proceeding we have only to apply the language of this court in State v. Alexander, 130 So. 754, 756, wherein the court said: "Two of the trustees, acting independently, without a formal meeting of the board of trustees, had no authority either to elect teachers . . . or reassign such teachers after they had been duly elected. Where several persons are authorized to perform a public service, or to do an act of a public nature as an organized body, which requires deliberation, they must be convened in a body, in order that they may have the counsel and advice of every member. . . . Any action otherwise taken, although with the consent of the majority of the members of the body, is illegal. This principle is elementary, and applies, of course, to school trustees."
If the proceedings taken in this case could be valid, then teachers could be elected by sending around the certificate of election to each trustee at his home or place of business, and, when the signatures of all of them have been obtained, the necessity for a meeting to discuss and deliberate over the matter and for mutual advice and conference between the members in respect to that important subjct would disappear. Such a procedure is not within the contemplation or purposes of the law, section 6629, Code 1930, and is not permissible.
Reversed, and petition dismissed.