Untitled Texas Attorney General Opinion ( 1940 )


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  • Gerald        C. Mann
    Hon. A. M. Pribble                        Opinion NO. O-2446
    county   Attorney                         Be:   Validity     of school superintend-
    Goldt hwlaite , Texas                     ent’s ,contract     where a board member
    was-misled     causing   him not to attend
    meeting of board at which contract
    Dear Sir:                                 was made.
    In your      letter      of May 30,      1940,     you submit       to us the
    following       facts:
    “The president      of the board of trustees         of an in-
    dependent     school district     told one member of the board
    on being asked if a meeting           of the school board would
    be held that night replied          that he knew of no reason
    why there     should be a meeting.         However he had already
    notified    the other members of the board and a called
    meeting of the board was held that night and the trus-
    tee mentioned      above and another       trustee   were absent.
    The other four trustees         met with the president         of the
    board and the question         of rehiring      the superintendent
    of the school was raised,         and two votes were cast for
    rehiring    the superintendent        and two against.        The pres-
    ident then voted to rehire          the superintendent.         The
    trustee    mentioned    above would have voted not to rehire
    the superintendent      .I1
    You request           our opinion     as to whether        this     contract
    is    a legal    one.
    We   quote    from 34 Texas          Jurisprudence,        p.     457,   as fol-
    lows:
    In order that the acts of a governmental                          or admin-
    istrative     board may be valid   it must act as a                       body.
    Consent or acquiescence     of, or agreements      by,                    the in-
    dividual    members acting  separately    and not as                      a body do
    not bind the board or the political        subdivision                       which
    they represent,     and all persons are chargeable                        with
    knowledge that such is the case.”
    From Mechem on Public               Offices      and Officers,       pp.   375-
    6, we quote:
    Where,   however,  a trust                 or agency is       created  by
    law or is public  in its nature                  and requires       the exercise
    Hon.    A. M. Pribble,      page    2   (O-2446)
    of deliberation,        discretion       or judgment,    whether   it be
    judicial     or m-judicial             in its character,      the rule
    is otherwise,       and while all of the trustees,            agents
    or officers,       except where the law makes a less number
    a quorum, must be present            to deliberate      or, what is
    the same thing must be duly notified               and have an oppor-
    tunity   to be present,         yet,   except where the law clearly
    requires     the joint     action    of them all,     it is well set-
    tled that a majority          of them, where the number is such
    as to admit of a majority,             if present,    may act and
    that their      act will be deemed the act of the body....
    I’....
    ‘;The act of the majority          can only be upheld,      how-
    ever, -when the conditions           named exist.      For if the
    minority    took no part in the transaction,             were ignorant
    of what was done, gave no implied              consent   to the action
    and were neither       consulted      nor had any opportunity       to
    exert their     legitimate      influence    in determining     the
    course to be pursued,         the action     of the majority     will
    be unavailing.     I’
    We quote from the Amarillo  Court              of Civil   Appeals          in
    City    of Floydada   vs. Gilliam, 111 S.W. (2)              761,  as follows:
    ,I . ..The statute    does not provide      how the expression
    shall.be        made, but it is well settled        that the govern-
    ing authorities         of cities,    as  well   as boards  of direc-
    tors of corporations           and other representative      bodies,
    can express        themselves     and bind the institution      which
    they represent         only by acting     together    in a meeting    duly
    assembled..       .‘I
    From King vs.         Guerra,    1 S.W.(2) 373,        San Antonio
    Court    of Civil Appeals,         we take    the following:
    “It is true,     as a matter        of course,‘that        the
    friendly    expressions       obtained      from the mayor and two
    commissioners,       in private       conversations--whether           made
    casually,     upon impulses       of the moment and without             defi-
    nite knowledge or consideration                of the true facts        of
    the proposed      projects,      or whether       given deliberately
    and after     mature consideration            of all the ascertain-
    able facts--     can have no bearing           upon the case.         Even
    had they been so disposed,             which they deny is the case,
    those officials,        acting     singly,     individually,       and sep-
    arately,    at different       places      and times and upon dlffer-
    ent occasions,       could not bind themselves               in their   offi-
    cial capacity,       nor the board of city commissioners                  as a
    Ron.   A. M. Pribble,      page    3    (O-2446)
    body, nor the      government      of the     city,    nor    any of its
    departments...."
    InPeople         ;s.    Bachelor,      
    22 N.Y. 128
    ,    the   Supreme      Court
    of New York said:
    "It is'not   only a plain dictate      of reason,   but            a
    general     rule of law, that no power or function        in-
    trusted     to a body consisting     of a number of persons,
    can be legally      exercised   without  notice   to all the
    members composing such body."
    We   cite also      State vs. &ion         Light, Heat        & Power Co.,
    
    182 N.W. 538
    ,      N. Dak.;      P. & F.R.Ry.Co.        vs. Com'rs.,        16 Kan.302.
    We think it is plainly           contemplated       by Article   2781,
    Revised    Civil Statutes       that in employing         teachers    and superin-
    tendents    the Board of *rustees         must meet and act as a board,             in
    accordance     with general     rules.      Residents     of the district      were
    entitled    to have this      contract     acted upon at a meeting          of the
    Board,    at which all members were present             or had been given no-
    tice    and an opportunity      to be there.         We note that the presi-
    dent of the board did not advise the member unequivocably                      that
    there would be no meeting,           but simply stated         that  "he knew of
    no reason why there        should be a meeting."            This statement     would
    naturally     give the impression        that there-would         be no meeting
    and we think your letter          implies     that it was so understood          by
    the member and that it caused his absence.                   If such be estab-
    lished    as true,   it is our opinion          that the contract       cannot be
    enforced.
    Our answer      to your    question     therefore       is   a negative
    one.
    Very truly     yours
    APPROVEDJUN 11, 19443
    Ls/ Ge~rald. C. Mann                          &l!TORNEYGENERALOF TEXAS
    ATTORNEYGEI$ERALOF TEXAS
    By /s/ Glenn R;-Lewis     '~
    APPROVED: CP~~~ON-CO~~TTEE                    Glenn R. Lewis, Assistant
    BY;  ._-. B!@, .CHwm.N   __
    -GR&Z%B:wb. .'
    

Document Info

Docket Number: O-2446

Judges: Gerald Mann

Filed Date: 7/2/1940

Precedential Status: Precedential

Modified Date: 2/18/2017