Montana Attorney General Opinion 15-99

Opinion No. 99 Schools - School 'I'.'ustees - Sale of School P.'operly-County Commission- ers--l\leetings--Waiver of Notice. HgLD: In the ah;:enee of proecdure fixed by statute for sale of school property, trustees mny select the mode reasonably well adnpted to the accom- plishment of the end, Postcd public notice required hy Sec- tion 4-Hi2, amended Laws H)2n, Chapter 35, is for benefit of public and cnnnot he wu h'ed by commissioners, March 3, 1H33, You ha"e requested my opinion on the following questions: "1. Undcr the pro\'isions of our statute in regard to the electors of a school district u uthOl;zing the trus- tees ,to sell or dispose of a school building, may the trustees mnke such sa Ie in any manner they think most adYantageous'! "2, Can the board of county com- missionel's, under the provisions gOY- erning extra or spec-ial sessions of the board, as proyided in Chnpter 35, Laws of 1H2H, wah'e the notice re- qnired by that statute under any cir- cumstances '! "3, If a legal meeting of the board of county commissioners cannot be held until public notice has been post- ed for two days as required by the session \a ws referred to in question 2, how can It board legally act on mat- ters that require immediate atten- tion '!" I find no proyision in the statutes which prescribes the procedure to be followed by school tl'Ustees in selling or disposing of sehool huildings, In the absence of such specifiC pro"ii>;on, I am of the opinion that the trustees should be left free to use their own discretion in selecting the mode of pro- eedure and that their action would be upheld if the mOllc of procedure Is .'casonahly well adapted to the accom- plishment of the end, It would seem that the rule announeed by the Su- preme Court in the case of Morse ,', Granite County, 44 Mont. 78, .should be applicable, The court, in speaking of the powers of county commissioners, :,;aid on page 89: OPINIONS OF THE ATTORNEY GENERAL "Therefore, its board of commis- sioners-its executive body-is a body of limited powers and must in e\-ery instance justify its action by refer- ence to the provisions of law defining and limiting thesc powers_ (Section 2894; State ex reI, Lambert v. Coad, 28 Mont. 181, 57 Pac. 192). If, how- c\-er, there is no question of the exist- ence of the power to do the act pro- posed, and the mode of its exercise is not pointed out, the board is left free to use its own discretion in select- ing the mode it shall adopt or the course it shall pursue, and the result cannot be called in question if thc course pursued is reasonably well adapted to the accomplishment of the end proposed." 'Vhile no specific procedure has been fixed by statute, it might ue advisable to suggest to the school trustees that where the yalue of the property justi- fied, it would be good practice to ad- \-ertise and ,sell such property at pub- lic sale. In a good many instances, I presume the property to be sold is of such little value that the board would not feel justified in expending a grea t dcal of money for advertising or ap.- praising the property. As to whether or not the connty com- missioners may wah'e the notice of special meeting required by Section 4462 as amended by Chapter 85, Laws of 1029, I am of the opinion that this notice was intended to be for the bene- fit of the public and, therefore, it can- not be waived. There seems to be some confusion of authoritiE'-S in this con- ncction. When personal notice to thc members of the board of a proposed "pecial meeting is provided, I am of the opinion that such notice may be wah-ed by the members of the board if they meet voluntarily and unanimously agree upon holding a special session. Hee: J\Iorse v. Granite County, supra; Heid v. Lincoln County, et aI, 46 Mont. 81; 15 C. J. 464, Section 115. I do not feel that I should render an opinion in regard to your third ques- tion as -to how the hoard can legally act on matters that require immediate attention, without knowing all of the facts pertaining to the business to be acted upon and the emergency. It is possible that in extremely urgent cases the board might take some action which later might be ratified at a meeting called after giving the re- quiretl two days' posted public notice.