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 __
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