Montana Attorney General Opinion 16-61

Opinion No. 61. Schools-Elections-School Trustees. HELD: Under the rule of State ex reI. Kuhl v. Kaiser, 95 Mont. 550, where the terms of three elected members and of two appointed mem- bers of the seven members of the Board of School Trustees expire, it will be necessary to elect three mem- bers for 'complete terms and two members to fill the unexpired terms of the two members who had previ- ously resigned, the provisions of Sec- tion 1001, R. C. M. 1921 notwith- standing. Mr. W. R. Taylor County Attorney Anaconda, Montana March 16, 1935. This will acknowledge receipt of your letter of March 13, from which the following is quoted: "At the school election held in this county in the spring of 1934, two members were elected for three year terms to the school board. Shortly after their election they re- signed, and in accordance with Sec- OPINIONS OF THE ATTORNEY GENERAL 57 tion 998 of the Revised Codes of Montana of 1921, two members were appointed to succeed them. By this same section of the Revised Codes of Montana of 1921, the trustees so appointed hold office only until the next election. "The terms of the regularly elect- ed members of the school board ex- pire in April. At the election to be held in April it is necessary to elect five members of the school board, two to hold office for the remainder of the terms that were voted upon at the election of 1934, and three to be elected for terms of three years. "The school board was in doubt as to the action that should be tak- en because of Section 1001 of the Revised Codes of Montana of 1921. They requested my opinion, and asked if I would have it confirmed or corrected by you." You further state that relying upon the case of State ex reI. Kuhl v. Kaiser, 95 Mont. 550, 27 Pac. (2d) 1113, you advised the school board: "That at the election to be held in April it will be necessary to elect two members of the school board to fill the unexpired terms of the two members who resigned, and to elect three members for complete terms." Section IDOl, R. C. M. 1921, pro- vides: "When at any annual school election the terms of a majority of the trustees regularly expire in dis- tricts of the first class, three trus- tees, * * * shall be elected for three years, and the remaining trustee or trustees whose terms expire shall hold over for one or two years as may be necessary to prevent the terms of a majority of the board of trustees expiring in anyone year; provided, that it shall be determined by lot what trustees shall hold over, and for what term." In the Kuhl case the court held that the words, "When * * * the terms of a majority of the trustees regularly expire" used in Section 1001 refers only to the terms of trus- tees elected for a three year term a.nd not to appointees. Consequently, under the facts before us, only the terms of the three regularly elected trustees and not the terms of a ma- jority (Section 986, R. C. M. 1921) will expire, and Section IDOl, R. C. M. 1921, under the rule of the Kuhl case does not apply. The situation presented is not without its perplexities. To us the intention of the legislature seems to be unequivocally expressed in Section IDOl, supra, "to prevent the terms of a majority of the board of trustees expiring in anyone year" in order that "a majority of the school board shall always be composed of persons who have had one or two years ex- perience in the management of its affairs." (Jersey v. Peacock, 70 Mont. 46, 223 Pac. 903.) Now, under the circumstances which have arisen in your county, the Kuhl case forces us to approve a re- sult which we think the legislature sought to prevent. The voters in your county within a few weeks will elect five out of seven trustees with the possibility that the five elected may be totally ignorant of the business and conduct, and completely inex- perienced in the administration of school affairs. It would be idle for this office to speculate upon the possibility of the Supreme Court abandoning the doc- trine of State ex reI. Kuhl v. Kaiser, supra, or holding that the rule adopt- ed therein does not apply to the situation existing in your county, but unless that is done we believe that your opinion to the board of trustees is correct and it is hereby confirmed.