When, does the present terms of the County Board of Education of a third class County expire, under the provisions of paragraph four (4) of the new section 165.657? In third class Counties with two (2) County Court Districts, and under the provisions of paragraph five of said statute, may the voters in one County Court District vote on candidates in the other County Court District? Does the Legislature have the power to terminate or shorten the term of a properly elected and serving County School Board member?

SCHOOLS &; SCHOOL VJ.S'l'.KH;'l's : wnen, aoes 'tne presen't 1;erms or 'tne County Board of Education of a third COUNTY BOARDS OF EDUCATION ; class County expire, under the pro- visions of paragraph four (4) of the new section 165. 657? In third class Counties ~with two (2) County Court Districts , and under the provisions of paragraph five of said statute , may the voters in one County Court District vote on candidates in the other County Court District? · Does the Legislature have the power to terminate or shorten the term of a properly elected and serving County School Board member? January ~ lQ, 1964 Hono~ab1e Darold w. Jenkins trosecut1ng Attornay Sal ine Courtty Marshall, M1seour1 Dear Mr. J e nkins: Opinion No . 360 ;qe,3 F fL ED This op1n1on 1s r endered in response to your request of Auguot 27, 1963, for an official op1n1on or this office. Your inquiry, which ~lates to Senate Btll No . 327 of the 72nd General Assembly which repealed and re-enacted Section 165.657, RSMo, i s threefold: l. "When • • • do the present tertns of the County Board of Education or a thi rd class County exp1re1 under the provi si ons or paragraph rour (q) of the new seet1on 165.657?" 2. " ••• 1n third class Counties w1th two (2) County Court D1str1cts, and under the prov1s1ons or paragraph t1ve (5) of said statute, may the voters 1n one County Court D1str1ct vote on candidates in the other County Co~t Di strict?" 3. "Does the 1Ag1slature have the power to t ermi nate or shorten the term or a properly elected and serving County School Board member?" I. Your first and thi rd inquiries are closely related, hence wa shall discuss them together. Honorable Darold w. Jenkins The County Board or Education set up by Section 165.657, RSMo 1959, ia a creature of the Legislature, As sueh, the Legislature may modify or abolish it as may seem necessary unless prohibited by the Constitution. 0 In this state our courts always have recognized and applieo the doctrine sub- ported by the great weight of authority in America that no one can acquire a vested right in an office estab11·&hed by the legislative department of a state or municipality. All oft'1ces a~ ·created tor the public good, and the r1gh~s of their incumbents are subordinate and inferior to that prime object. The power to create, unless P$&tra1ned by law, include$ the powel" to abolish, and an officer elected or appointed evEnt for a .def1n1 te tenn takes ottice with the implied understanding that the power whieb c.reated the office may abolish 1 t before the exp1t-at1on or his term, in which event he Will find himself out of office. • • ••' SandePe v. Kans$8 C1 tz., 162 sw 663, 665. . Accordc State ex rel. Tolerton v. Oor~on, 236 Mo. 142, 139 sw 403, 407; ~fi!n!?§~ -l~ l§1on Bo\i!t 306 u.s. 535. 538. Thus, the teg ~;iture~ e p.ower to end tbe terms or County Board or Education members serving under Seetlon 165.657, RSMo 1959. The priol' law, Seotion 165 . 6~7, RSMo 1959, creat-ed in all counties boards or education ot 14ent1eal membership, terms, and metbod of selection. Under Section 165 . 657 ~ RSMD 1959, a si.x-tnam.ber County Board. ot Education was selected by the , toembers of the school d1GtJ1'1ct boards. Two members were selected each year to serve a three year term. This same scheme was used in every county. Senate Bill No. 327 substantially chan~'s th~s statute. It sets up not one seh~ to be uaed in all cnunt1ea but two fll'!hemes, on~ tor aotmties or the first elaas {Senate Bill No. 32'& §§ l-3) # anotl}er schema for counties ot the second, third and fourth olaas (Senate Bill 321, §§ 4•7). 'fhe aeheme to be used 1n first class counties 1s substantially a continuation of the seheme tha prior law applied to all count.1es . Honorable Darold W. Jenkin-s However, the new scheme to be use-d in second, third., and fourth class counties is &1gnif1oantly different. The naw sehe~ provides for bOards of education elected by 'oeulap ~. ~1s Padically departs from the method of se ect!on used uruler the prior law. The significance of this change is mani- fest by the section ot the Act wn1cb p·rov1des for tbe entire membersbil' of the boiU'4 to be elected at the next annual school election Senate lUll No . 327, §5. Although the ex1&t1ng boards ot education 1n second, third and fourth class eountiae are not abolished by expres& words of Senate Bill No . 327, this 1s 1 ta necessary implication. The new law provides for the $el~ct1on of the entire membership of the board by a fundamentally different method~ popular vote. We therefore eonclude that Senate Bill No., 327 creates new boards ot education in all secend, tl\1r4 and tourth class counties and that the p~1oP boards cease to ex1et with the election of the new boarcts nat the annual sehool election next following the effect1 ve date of th~s a.,ct1t J namely .. ApP11 7 ~ 1964. We note one exception to the above conclusi on. Senate Bill No. 327, §7 provides1 .. 7. In the event thero is only one school d1etr1et 1n ~ oounty, the board of educa- tion tor tnat district sha~l serve as the county board ot education.' Thus, 1n counties to which se.etion seven, supra, applies, the old eounty boa~ ~f education ceases to exi$t on the effective date of Senate Bill 327 and the scbo&l 41str1ct board serves as the county beard. II We turn now to yo~ second inquiry, to w:it: under Senate Bill No. 327, f§ 4-7 mav the voters of one eounty court district vote on candidates to be elected from the other county court district? For convenient retel'enee 1 we shall here set out the provisions of sections four and five of Senate Bill No. 327, to wita "4. The~e 1e created in each second, third and fourth class county in thia state a county board or education whoae members shall be elected by popular vote at the annual school election held on tbe f1ret Tuesday in April in each )Tear. Each member shall be a citizen of the United States and of the State or MtssouriJ ... 3 ... Honorable Darold w. Jenkins a resident householder of tbe county, and shall be not less than twenty-four years of age. Nominations for board members shall be filed with the socre- tary of the eounty board of education at least thirty days before the election. The county board of education shall pre- pare ballots and publish notice for such election in the same manner ae for boards of education 1n school districts . "5. At the annual school election next following the effective date of this act, six members shall be elected whose terms shall be determined at the first maeting of the board subsequent to the election as follows~ In each county court district the member recoi ving the highest number of votes shall serve for three years; the member receiving the next highest numbor of votes shall eerve for two years, and tho member receiving tho least number of votes shall serve for one year. There- after each member shall aerve for three years. Not more than three members shall be elected from ono county court district. Senate Bill No. 327, §§ 4 and 5, creates in each county or tba second, third and fourth class a county board of education I .. of six members to be elected by popular vote. Senate Bj_ll No. 327, ~~ 4 and 5, expre·saly provide a that a six-member board shall be elected by popular vote and that not more than three of the a1x mombera shall be elected from each county court district. But nowhere ia there an express provision as to whether the voters of one county court district shall vote upon the candidates from both districts or only upon those candidates to be elected from their district. The intention of the Legislature, which is determinative of tho meaning of this and e very statute, is not tound here in the express words ot the statute . Therefore, it must be tound by analysis or tho other provisions or the new law and the prior law in light or reason and tho rules of statutory construction. We are ot the opinion that the intention of the Legislature manifest in Senate Bill 327, ~§ 4-7, is that the voters in each county court district shall voto only on those candidates for -4- I ~ • • Honorable Darold w. Jenkins membership on t he county board of education to be elected from their district and not those to be elected from the other county court district . A8 we have noted supra, Senate B1ll No. 327 seta up two distinct schemes, one tor first class counties, the other for second, third, and fourth class counties. In the first scheme of the new law we find the limitation, HMot more than three members ot the board shall reside in any county court d1s'6rict" . (Emphasis added) Senate Bill Ro. 327. §2. SUbstantially the same words were uaed in the prior law. However, unttex- t he eeeont1 scheme of the new law we find the limitation, •'Not more than t hree members shall be elected trom one county court district" . (Emphasis added) Senate Bill Ro . 327, §5. Obvioualy the l~tat1on under the second scheme (second, third and rourth class counties) is not a requirement merely that three of the members be ~aidents of each county court district. If t he L~g1alature had intended merely a residence requirement, ~he words, "reside in", •• were used in the prior law and the tirat scheme ot the new law ~uld have better ex- pressed such an intent. Purthennore, lt is a rule ot statutory construction that where l anguage uaed in one section 1a ditterent rrom that used in other aect1ona of the aame statute and different from that used in a prior statute, it 1e presumed that such language is used with a different intent. Wine v. Commonwealth, Maas, 17 N. E. ~d 545 [6).. 'J'"e words, "reside in" and "elected r:rom" , manifest a difference in the f1rat and second schemes ot Senate Bill 327. It 1a clearly expressed under the prior law and under the first scheme (first class counties) ot the new law that all or the electors may vote on all ot the members ot the county board. Whether or not the same ia true under the second scheme of Senate Bill No. 321 1s your 1nqtti~:y .. Both ot the schemes under the new l aw and the scheme of the vr1or law provided tor county board members to be ~lee i, •:.('! . In this res9eet all schemes are alike. Onder the prior law and under the t1rat scheme ot the new law the electors are the member• ot the boards of the school districts. Under the second scheme ot the new law, the electors are the pe~ le, i .e. a direct popular vote. It under the second scheme (second, third and fourth class counties) of Senate Btll No. 327 all electors of the county may vote on all members ot the county board, the sentence "Not more than three members shall be elected from one county court d1a• tr1ct 11 , would be nothing more than a residence requirement, it that. But, we have already established that it is not. Th9 words nelected from" are only consistent with the alternative construction; namely, that under the aecond scheme the electors -5- Honorable Darold w. Jenkins of each county court district shall vote upon only the members of the county board to bo elected from their district. The ohange of th$ words, "reside in", of the prior law to the words "elected from", of the new law are significant or the !J.!gislatures intent. The one construction of Senate Bill No. 327, §§ 4-7, consistent with this intent is that three ~mbera of tho county board snall be selected by the people or each county court dis- trict. Senate ~11 No. 327 limits eacb county court district to three or the members of the board. Under the t irst scheme each membership 1a voted upon oeparately, each being el cted by a maJorj ty vote. However, under the second scheme if the members were .elected by the votvrs ot the entire county, those candi- dates ~ho receive the grQater number of votoe may not always become the elected members. This 1& so because Wlder the second scheme all members wi ll bo elected simultaneously. Let us illus- trate tha possible anomalous results by an example: Assume: the candidates are A, B, C, D, E1 and F, w, x, y, and z. Candidates A through F are from county court district one and candidates w through z are from district two. The total votes trom each district are: Votes Voteo Candidate District One District Two Total A None 1,200 1,200 B 500 600 1,100 c 700 310 1,010 D 950 50 1,000 B 600 300 §gg F 500 300 w 700 None 700 X 100 500 600 y 400 50 450 z 10 400 410 Applying three-member l imit to such a hypothetical election would moan: The mombers of the county board or cduca t1on would be A, B, 0 from d~str1et one and w, x, and y from district two. A, though he received no votes in his own district wan elected -- actually by tha voterA or district two. The converse 1a true ot y. f.bre voters in district one preferred D to represent them than any other candidate from that district, and more voters county wide preferred D than w, x, andy, yot .. D does not become a member. Nor dot $ E and P hocomo me1nbers although they re- ceived more votes than w, x, and y. Various other examples could -6- Honorable Darold W. Jenkins be given of possible anomalous results ocour1ng from members ot th3 county board being el~ot3d by vote~n of tho entire county, If the candidates from each county court district are voted upon by the voters of their diotrict, tho mcmboro e lected Will directly relate to the voten thoy receive and it will net be possible for the voters of one d1~tr1ct to elect the members from the other dietrJet. The anomalies discussed supra will not occur. We aro aware that if one county court district was sub- at&nt1ally moro populous than the other then the ~cmbersh1~ the board \:lou1d not exactly represent tho w!.ll of the major1 ty of· voters in tho county. Houovcr, the threo-membor per county court district limitation of Senate Bill No . 327 §2 and §5, manifests a logiolativ~ intent that not only tho interests or the majority but also the interests of each county court dis- trict are to bo represented by the members or the county board. In our op1n1on, election of three members by each county court district better harmonizes with this intent and purpose. One may £orosce soveral possible abuses if the voters of one county court district could vote upon the membars to be elected from tbe other district. For example·: if one county court district was more popul ous than tho other, no is the caoe in many countias hav1ns ono large urban area, th~ larger dis- trict could select not only tho members to be elected from th ... ir district but also the tnell)bera to be elected from the othor district. Or if the ol3ction wore closel y contested in one district~ a minority in the other could control the membership of the board. \1 alao note 'J · · tho provisions or Senate Bill No . 327, §5, for determining the duration or tha inti tial terms . The open- ing phrase, •• In each county court district • * •, 11 or itself indicates a legislative plan of elections Within each district. We therefor9, oonoludo that the Legislature in enacting S~nato Bill No . 327, §§ 4-7 (applicable to second, third, and fourth class counties) ~tended that the voters of each county court district should e l oct thre~ memb-rs from their distriet and that the members or tlu oounty boar-d of education are not to be elocted by a vot of the entire county. -7- Honorable Darold w. Jenkins CONCLUSI01l Therefore, it 13 t he opinion or this office thats L. ~b~ Legislature has the power to abolish t he county boards or education created by Section 165.657, RSMo 1959. 2 . Senate Bill No. 327 ot the 72nd General Assembly abol1shaa th3 county boarda of oducat1on oroatod by Section 165,657, RSMo 1959, :tn counties of tb3 oecond, third and fourth class as of April 7, 1964, oxcopt as to those counties coming withln §7, which are abolished as or th~ errectlve date of the Act . 3. In counties or th~ second, third ar1d fourth class, under Senate Bill No . 32'7, §§4-7, the t hroo mambc1 .. s to be eloctod from each county court d1atr1ct al~ll bd e l ected only by tho voters of tao~r respective distri cts and not by the voters of the county as a \'lhole . Tho t'orogo1ng opinion, which l her.eby approve, was prepared by m¥ Assistant, Louis c . ~Feo, Jr. LCD/dg Yours tr">Uly, Ttl> MAs F. EAGl'21'0N Attot'ncy General