Ex Parte Alverson

117 S.E. 316, 123 S.C. 539, 1923 S.C. LEXIS 95

• Court: Supreme Court of South Carolina
• Decided: April 21, 1923
• Docket: 11194
• Status: Published

Opinions

The opinion of the Court was delivered by

Mr. Justice Eraser.

In 1917 an Act of the General Assembly was passed (Act May 9, 1917 [30 St. at Barge, p. 386]), which, so far as it affects this case, reads:

“Provided, that in the county of Spartanburg, in those school districts in which trustees were appointed by the county board of education under Section 1752, the policy of electing school trustees shall be adopted in any such school district upon the filing of a petition therefor in the office of the county superintendent of education, signed by a majority of the qualified electors of such school district, on or before the first day of March of any year; upon a proper petition being so filed, the county superintendent of education shall order an election to be held on the first Tuesday in April thereafter, giving ten days’ notice thereof, and appointing three qualified electors of such school district to conduct such election, who shall tabulate the ballots and make return thereon to the county board of education •within ten days after the holding of such election, and the county board of education shall commission the trustees elected; at the first of such elections the one receiving the highest vote shall be commissioner for six years, the second highest for four years, and the next for two years, and thereafter one trustee shall be elected for six. years each even year. Vacancies shall be filled by appointment, by the county board for the unexpired term. In school districts now having more than three trustees, upon the filing of such petitions for election the trustees shall thereafter be reduced to three. Immediately after each such election the respective boards of school district trustees shall organize by electing one of its members chairman. All such elections shall be by ballot, and at each election qualified electors of the school district residing therein shall vote.”

’In March, 1922, a. petition was filed with the county board of education from Victor school district for an election of trustees for said district. The election was held under an order of the Court, and the petitioners received a majority of the votes. They received the same number of votes. The board refused to commission the trustees elected, on the ground that the Act of 1917 had been repealed by the Act of 1918 found in the Acts of 1919, at page 3, and, even if the election was valid otherwise, there was only one vacancy on the board, and there was no way in which they could determine which of the three to commission. There was then an application to the Court for an order to require the county board to issue the commission. The Court made this order:

“This matter comes ‘before me on a rule to show cause, and, after hearing the return of the respondents and the consideration of both the Acts of the General Assembly, it appears to the Court that there is but one vacancy in the board of trustees for Victor school district No. 55, and, while in doubt as to the correct interpretation of this statute, the Court is- convinced that he has no right to oust two of the school trustees whose terms have not expired, in order to make room for three trustees elected. It is true this Court ordered an election for three trustees, but, if the matter had been called to my attention, viewing the matter as I now do, this Court would have only ordered an election for one trustee. It further appearing that all three trustees elected received the same number of votes, the Cpurt will direct that such trustee as the three trustees may mutually agree upon shall be commissioned as one of the trustees for Victor school district No. 55.

“Inasmuch as it has been indicated that this matter would be appealed to the Supreme Court, it is expressly understood that the selection of one of the trustees by the pe-' titioners for appointment shall not prejudice the rights of the three trustees for Victor school district No. 55 in case this order shall be reversed or modified by the Supreme Court.

“Eet a copy of this order be forthwith served upon J. B. Lancaster, superintendent of education for Spartanburg County.”

1 I. It is clear that the Act of 1918 does not apply to the Act of 1917. • The Act of 1918 contains this proviso:

“Provided, the provisions of this Act shall not affect the ■election of school trustees in school districts of this State in which election of such trustees is now provided by law.”

The words used are “provided by law.” The word “adopted” is not used. The' election of school trustees for Spartanburg school districts was “provided for,” and therefore the Act of 1918 does not apply to the Spartanburg school district.

2 II. The Act of 1917 provides for the new board. If the position that there was only one vacancy be correct, then the Legislature can never create a new board, as the terms of office of the old board expire at different times. It is not claimed that the Legislature cannot make a change and oust a trustee before the expiration of his term, but that the presumption is- against it. There is no room for such a presumption here, as the language is clear that an entirely new board at one time is provided for. It may be a> casus omissus, but the provision is clear. “The one receiving the highest vote shall be commissioned for six years, the second highest for four years, and the next for two years.” The three received the same number of votes, and the statute provided no way in which the terms of office could be determined. The school board had no right to settle the matter. Inasmuch as the school board had no right to act, the Courts are without power to require them to do an unauthorized act. Until the Legislature makes provision for such a contingency, or a new election is held, there is no authority to commission either one of the three, nor to determine the two, four, and six year terms. The Constitution (Article 1, § 11) provides “the terms of all officers shall be for some specified period.” The means of specification under the Act has failed.

The order appealed from is reversed.

Mr. Chiee Justice Gary and Mr. Justice Watts concur. Mr. Justice Marion concurs in result.