Opinion letter to the Honorable Peter H.

Answer by lettter-Wood OPINION LETTER NO. 16 Honorable Peter H. Rea Prosecuting Attorney Taney County Court House Porsyth, Missouri 65653 Dear Mr. Rea: FILE 0 /(p You have inquired as to t he validity of the composition of a board of arbitration est ablished pursuant to Section 162.431, RSMo, to consi6er adjustment of school di strict boundaries. The portion ot this statute about which your question r evolves states: "· •• If the districts attected are in two counties , the presidents of the county boards of education concerned together with one mem- ber appointed by t he state board of education not a r esident of the counties affected con- stitute a board or arbitration •••• " (Sec- tion 162. 431(3), RSMo) We understand from the State Department or Education that your question arises from a petition submitted by certain voters ot the Nixa Reorganized School District R-2 to alter t he boundary between Nixa Reorganized School District R-2 (Christian and a small portion ot Stone Counties) and Ozark Reorganized School District R-6 (Chris- tian County), both six-director school districts. At the April 7, 1970, election on the question, the voters of the Ni xa District voted against the boundary change , and the voters of the Ozark Dis- trict voted in favor ot the change. Accordingly, pursuant to Section 162.~31, RSMo a board or arbitration convened , and on July 6, 1970 , ruled against the boundary change. This board or arbitra- tion consisted of Freeman Gl en, President of the Christian County Board ot Education, and Laurence Meiner or Ja.sper County, designee ot the State Board ot E6ueation. Christian and Stone Counties have not conducted annual elections to the county board or education tor Honorable Peter H. Rea the past several years. Preeman Glen is the last President of the Christian County Board or Education selected pursuant to Sections 162.111 and 162.121, RSl.,o. Stone County's last such selected Pre- sident died prior to the convening of the board of arbitration in question, but at the time , you advise us that Stone County had a "Vice-President" or the county board of education. Hence your question: Was the "Vice-President" of the Stone County Board or Education eligible for, and an indis- pensable member of the board of arbitration appointed pursuant to Section 162.4 31 ( 3), RSr.to, to act on the petition for altering the bound- aries of the Nixa R-2 and Ozark R-6 School Districts? Six member county boards of education are authorized to be elected at annual April school elections with three members from each county court district, and the members serving staggered three year terms (Section 162 .111 , RSMo). The board is to organize with- in four dayn of the election by selecting a President from among its members (Section 162.121 , RSMo). Four members constitute a quorum for board meetings (Section 162.131, RSMo) . Section 162.131, RSMo, requires that the county board or education meet at least once each quarter of each calendar year and as often otherwise as is necessary to discharge its duties. One or two vacancies may be tilled by the board and more than two by t he county court, pending the next annual school el ection (Section 1 62 .1~1 , RS~lo). Quite obviously, t he statutes make no provision for a "Vice- President " of a county board of education. It is our view that upon the demise of the member who had been selected as the Presi- dent of the Stone County Board of Education, t he board was required to till the vacancy by appointment of a new member and was also re- quired to reorganize by selecting a new President (Section 162.121 and Section 162.141, RSMo). A "Vice-President" selected by the board in advance of the vacancy or the President's demise would not constitute an adequate reorganization entitling this "Vice- President" to have been recognized as a member of the board of arbitration convened pursuant to Section 162 .431(3) , RSMo. Therefore, at the time the board or arbitration convened to consider the question or the boundary change, there was a vaoancy on the three-man board contemplated by law (Section 162.431 (3), RSMo, as above-quoted). Could the two properly qualified members make the final decision on the boundary question? We think they could in view of Section 1.050, RSMo, which provides: -2- Honorable Peter H. Rea "Words importing joint authority to three or more persons shall be construed as authority to a majority of the persons , unless otherwise declared in the law giving the authority." This statute was applied by the Missouri Supreme Court in ruling that two or the three commissioners appointed by the county court to appraise damages in connection with a road change could qualify and validly make the required appraisement. "It is true the statute (Acts 1893, p. 223, § 3) requires the county court to appoint three disinterested freeholders to act as a board or commissioners, to assess the damages resulting to the owner by reason of the loca- tion or a new road, or the change of a road, upon his land. The legislature, however, has laid down certain rules for the construction of statutes. Section 6570, Rev. St. 1889, de- clares that 'the construction of all statutes of this state shall be by the following addi- tional rules, unless such construction be plainly repugnant to t he intent of the legisla- ture, or the context of t he same statute: • • • Second, words imparting joint authority to three or more persons shall be construed as authority to a majority of such persons, unless otherwise declared in the law giving such authority.' There is nothing in the road law, under which the county court was acting, indicating an in- tent that all the commissioner s must qualify and act. Upon the contrary, it is declared that 'the report of said board of commissioners , when signed by a majority of them, shall be taken and considered as the report of all.' Acts 1893, p. 223, § 3. This court said in Quayle v. Railroad Co., 63 Mo. 465: 'What is the joint authority conferred upon the three commissioners? It is to view the land , assess the damages, and make report. It is not ex- pressed in the statute that all three shall join in the view of the land, the assessment or the damages, or in making the report, and therefore, according to the rule of construc- tion laid down by the legislature, any two of them might act, and perform all of these duties, unless such a construction would not only be repugnant, but plainly repugnant, to the in- tention or the legislature in requiring them -3- Honorable Peter H. Rea to be appointed.' See, also, Moore v. Wingate, 53 Mo. 398. It is plainly apparent that the legislature intended that, if a majority or the commissioners should qualify and make the assessment, their acts should be valid •••• " (Thurlow v. Ross, 45 S.W. 1125 , 1126 (Mo. 1898)) Under a statute substantially identical to Section 1.050, RSMo, the Supreme Court or Kansas ruled that a parole revocation by two members or the state parole board, required by statute to have three members, was valid where there was a vacancy in the board's third membership (Murray v. State, 394 P.2d 88 (Kan. 1964)). Accordingly, we are or the opinion that the action taken by Freeman Glen and Laurence Meiner, as the board or arbitration con- vened pursuant to Section 162.431, RSMo, was valid. Yours very truly , JOHN C. DANFORTH Attorney General -4-