Montana Attorney General Opinion 17-81

Opinion No. 81. Schoo1s-Trustees-Election. HELD: A school trustee in a sec- ond class district may be elected by having his name written in, on the ballot. without nomination. Mr. Geo. W. IVlcLean County Attorney Ravalli County Hamilton, Montana Dear l'vlr. McLean: April 12, 1937. You have submitted the following set of facts, requesting our opinion of the law thereon. In a certain school district in your county, on :'If arch 22, notices of an OPINIONS OF THE ATTORNEY GE"NERAL 93 election of two school trustees at the election of April 5 were duly made and given. On March 26, Mr. Holt, one of the trustees of the said district, holding over, died. At the election a couple of names were written in on the ballot, for the unexpired term of Mr. Holt. Mr. Buck received the greatest number of these votes for Mr. Holt's unexpired term. The district is a second class district. The question to be determined is whether or not Mr. Holt's position has been filled by the election of Mr. Buck, or an appoint- ment to Mr. Holt's unexpired term should be made. Article 9, Section 10, of the Constitu- tion, and Section 985 R. C. M. 1935 provide for the qualifications of trus- tees. Section 988 provides: "In districts of the second class, the names of all candidates for member- ship on the school board must be received and filed by the clerk, and posted at each polling place at least five days next preceding the election." Section 990 has reference to elections in school districts of the first class and, among other things, provides: "The nomination and election of any person shall be void, unless he was nominated at a meeting as above provided, at which at least twenty qualified voters were present, and his nomination certified and filed as afore- said, and the board of trustees acting as the canvassing board shall not count any votes cast for any person unless he has been so nominated, and a certificate thereof filed as herein re- quired." Section 996, among other things, pro- vides: "The clerk shall enter in the tally list, the name of every person voted for as trustee, and the term, and tally ovposite his name the number of votes cast for him. and at the end thereof set down in a column pro- vided for that purpose the whole number of votes he received." Section 998 provid~s in part: "vVhen a vacancy occurs in the office of the trustee of any school district by reason of death, the county superintendent shall appoint some qualified person as trustee, who shall qualify and serve until the next annual school election." Section 988 provides that all candi- dates for members of the school board must be received and filed with the clerk. Comparing Section 988 with Section 990, it would appear that the language in Section 988 is only directory. The Legislature has distinguished between trustees in second or third class dis- tricts, and trustees in a first class dis- trict, and have added the additional language in referring to a first class district,-"that unless such persons are nominated, they cannot be elected." This opinion should not be construed as holding that Section 990 requires an additional qualification beyond the qualification provided by the Constitu- tion for the election of trustees in a first class district. The question is not before us. This opinion seeks to differ- entiate between the language used in Section 988 and in Section 990. The Legislature did not intend to provide, that, if trustees were not nominated in a second class district, but were elected by having their names written in, their election would be void, whereas it was the plain intent of the Legislature to make trustees so elected without being nominated, in a first class district, void. When Mr. Holt died, the county super- intendent had a right to appoint a com- petent person to fill his term from the date of his death until the next annual school election. or until April 5, at which time the electors of that district could elect a new trustee. Section 996 provides the method and manner of counting the votes received by the candidates. See 20 Corpus Juris, page 105; Miller v. Childs, 152 Pac. 972; Littlejohn v. People. 121 Pac. 159. Our Supreme Court has passed upon the principle of law involved in the case of State ex reI. Kuhl v. Kaiser, 95 Mont. 550, and the court very aptly said: "Section 1001 reveals no plan or purpose to paralyze the peoples priv- ilege of selecting their own trustee, except only in the case where there must be an adjustment by terms, so that the majority thereof shall not ex- pire in anyone year, a situation not present here." 94 OPINIONS OF THE ATTORNEY GENERAL It appears in the Kuhl case, supra, that the trustees were elected, without nomination, by use of stickers, by the electors at the general school election. It is my opinion under the facts you have stated, that Mr. Buck was elected for Mr. Holt's unexpired term, and that the advice that you have rendered to the proper official is correct, and I concur and agree with your views therein. Opinion No, 82. Officers-Expenses. HELD: Section 459.1, relating to expenses of officers, does not apply to officers of the state paid on a per diem basis. April 13, 1937. Hon. L. M. A. Wass Administrator, Montana Liquor Control Board Helena, Montana Dear Mr. Wass: You have submitted the following question: "Are the members of the Montana Liquor Control Board bound by Sec- tion 459.1 of Chapter 52, entitled 'Regulations Concerning Public Offi- cers,' of Revised Codes of Montana 1935, or any acts subsequent thereto? Or. are the board members allowed their actual expenses over $4.00 per day while engaged in their official duties ?" Section 459.1, R. C. M. 1935, pro- vides: "Every person engaged in any serv- ice in every department of state, * * * whose duties consist of full or partial time in traveling to perform any serv- ice for the state under monthly or yearly salary, * * * shall be limited to not more than four dollars ($4.00) per day * * *." Chapter 30, Laws of 1937, provides: "Each of the members of the Mon- tana Liquor Control Board shall re- ceive, as compensation for his offi- cial services, the sum of ten dollars ($10.00) per diem, for each day ac- tually engaged in the duties of his office, including his time of travel be- tween his home and place of employ-. ment of such duties, together with the traveling expenses while away from home in the performance of the duties of his office, the maximum amount each member of the commission shall receive for per diem shall not exceed five hundred dollars ($500.00) per annum." Since the members of the boar-d are paid on a per diem basis and not a monthly or yearly salary, they do not come within the express terms of Sec- tion 459.1, and are therefore not limited to the $4.00 per day for expenses therein orovided.