Montana Attorney General Opinion 16-17

Opinion No. 17. Schools-School Trustees-Vacancy in Office. HELD: Where a school trustee re- moves from the district and estab- lishes a residence elsewhere, there is a vacancy in his office and he may not return within sixty days and as- sume to act as school trustee. Mr. F. F. Haynes County Attorney December 28, 1934. of Rosebud County Forsyth, Montana In your letter to us of recent date you state that "Mr. Clyde Hayden was a duly elected, qualified and acting member of the board of trustees of the Ingomar, Rosebud County, Mon- tana, school district. In the summer of 1934, he moved to Garfield County and established his residence and reg- istered as a voter there and became a candidate, by virtue of party nomina- tion, for the office of county attorney. He was defeated in the general elec- tion. He now removes to Ingomar, Rosebud County, and demands his seat upon the board of trustees", and ask us whether or not in our opinion Hay- den vacated the office of school trus- tee when he changed his residence from Rosebud County to Garfield County. Section 511, Revised Codes 1921, provides: "An office becomes vacant on the happening of either of the fol- lowing events before the expiration of the term of the incumbent. * * ,. 5. His ceasing to be a resident of the state, or, if the office be local, of the district, city, county, town, or town- ship, for which he was chosen or ap- pointed, or within which the duties of his office are required to be dis- charged * * *." Section 998, Revised Codes 1921, provides, among other things, that "when a vacancy occurs in the office of trustee of any school district by * * * removal from the district * * *, the fact of such va- cancy shall be immediately certified to the county superintendent by the clerk of the school district, and the county superintendent shall imme- diately appoint in writing, some com- petent person, who shall qualify and serve until the next annual school election." Assuming that the quoted state- ment is substantially correct there can hardly be any doubt that a vacancy occurred in the office of school trus- tee when Mr. Hayden removed from the Ingomar school district and took up his residence in Garfield County. Surely his having qualified as an elec- tor in Garfield County, either through compliance with Sections 554 and 555 or Section 561, Revised Codes 1921, has most convincing force. The courts have repeatedly held under a statute like ours that an office becomes va- cant where the facts are similar to those which exist here. (State v. Mc- Dermott, 17 Pac. (2d) 343; People ex reI. Tracy v. Brite, 55 Cal. 79; 46 C. J. 972.) The. fact, if it be a fact, that Mr. Hayden returned, as he claims, to the Ingomar school district, with the in- tention of residing there, less than sixty days after his departure there- from does not alter the situation. (State v. McDermott, supra.) Absence of a school trustee from the school dis- trict for sixty consecutive days, which under Section 998 also constitutes a vacancy in the office, has no connec- tion with the matter of loss of resi- dence, and is separate and distinct therefrom. It is our view, therefore, that Clyde Hayden vacated the office of school trustee when in the summer of 1934 he ceased to be a resident of the In- gomar school district.