Montana Attorney General Opinion 15-216

Opinion No. 216 Schools-Elections-Vacancies- County Supelintendents. HELD: Under the facts presented. there is strong doubt that the RC'hool election was legal. and any vacancies that now exist on the board bv reason of the election not being held' may be filled hy the superintendent of schools. May 23. 1933. In your request for an opinion rela- tive to the election, or attempted elec- tion in one of your school districts on April 1. H)33, you state that the fifteen da~·s' notice required by statute preced- ing- the election of school trustees in schools of the second and third classes was not given as required by Section !l8!l. R C. l\L 1921. You will note, by Section 989 referred to above, that the provisions other than the giving of the notice for controlling school elections in districts of the sec- ond and third classes is left very largely t() the trustees of the district but ~'ou "ill note tha t in the last three lines of that section the polls shall be open for such length of time as the boa I'd of trustees may ordcr but must be open from 2 :00 p. m. to 6:00 p. m. The trus- tees might direct the polls to be open for a longer time than from 2:00 p. m. to 6:00 p. m., but they must be open at least for that period. You state that the judges of election. who were all women, being intimidated by some taxpayer whom you do not name, closed the polls at 4:00 o'clock nnd did not canvass the votes until the next day .. The laws governing elections in school districts of the second and thi I'd classes are not yery exact except as to the posting of notice of election and the time when the polls shall be open, but where the statute does make any pro- visions, gO\'erning such elections, such provisions must be followed. Since the notices were not posted the required time before the election and the polls were not open longer than 4:00 o'clock p. m.-only a few votes having been cast and no showing as to the number who were deprived of the right to vote between the hours of 4 :00 and 6:00 o'clock p. m.-it necessarily follows that there is strong doubt that the elec- tion was legal. The decisions of our S'upreme Court make a distinction between questions that arise before and during the elec- tion and questions that arise after the election, (State v. Lentz, 50 Mont. 322; Thompson v. Chapin, 64 Mont. 376; Goodell \'. Judith Basin County 70 Mont. 222, and cases cited) and' ;vill not deprive electors of their franchises if any reasonable conclusion can be arrived at in the particular election. but the facts given in your case. do not, in our opinion, justify the assump- tion that a legal election was held. In view of the fact that no election was held in that district as provided by law, any vacancies that now exist on the board hy reason of the election not being held may be filled bv the superintendent of schools. . Any party who presumes to act in an official capacity, snch as the trustees who assumed that they were elected at the election on April 1, and who may have performed some duties as trustee since such n lleged election, will be re- garded as de facto offieers and any- thing thnt they have done within the scope of their duties as trustees may not be questioned by third parties. This would be different, of course, if they have assumed to do anything out- side of the law. W~ think it was your duty on heing apprIsed of the interruption of the election ·by the unnamed partv to have had him arrested and prosecuted as provided by Section 10S3, R. C. M. 1921. nnd other statutes relating to such offenses.