Honorable F. B. Caudle
County Attorney
Franklin County
Mt. Vernon, Texas Opinion Mmber O-1303
Ret Does the~Board of Trustees
have authority to designate poll-
ing places in bond elections for
Dear Sir: an independent school district?
We are in receipt of your opinion request and quota from your
letter as follows:
"In an election to determine the issuance of bonds
for an independent school district wholly within a Justioe
Precinct and containing the entire city limits of a toam, by
an order of the Board of Trustees ordering the election, the
courthouse was designated as the only polling place. The
Justioe Precinct in which the independent sohool district
was located had four voting precinots. All the votes in the
independent sohool district election were cast in eleation
Precinct k. 2.
"First: In view.& Artiale Six, Se&ion Three-A of
the Constitution, would any of the votes be counted
exoept those residing in Precinat No. 21
"Secondr Article 2708, R.S. 1926 authorizes the
Board of Trustees to designate the polling plaaes
and the order~did designate the courthoWe a8 the
polling plaoe; would Article Six, Section Three-A
of the Constitution, or Article 2768, R.S. 1926
dontrol?"
Article 6, Se&ion Sa of the Constitution reads p8 fOlloWat
%hen an election is held by aqy county, or any
number of aountiss, or any political subdivision
of the State, or my political subdivision of a
county, or any defined district nov?or hereafter
to bs described and defined within the State and
which may or may not include tams, villages or
munioipal corporations, or any city, town or vil-
lage, for the purposs of issuing bonds or other-
wise lending oredit, or expending money or
. I\
Hon. F. B. Caudle - Page 2 (0-13X)
assming any debt, only qualified eleotors
who own taxable property in the State, oounty,
political subdivision, district, city, tom or
village where such eleotion is held, and who
have duly rendered the same for taxation,
shall be qualified to vote and all electors
shall vote in the election precinct of their
residenoer*
Article 2788 reads, in part, as follows:
* e . * The election for said bonds shall be held with-
in thirty days after order of election, as fixed in the
eleotion order. The board of trustees shall at the seme
time fix the polling plaoes for holding such election
and name a judge and tm clerks at each polling place
. . ."
A11 independent school districts are created for free school
purposes aud their affairs arc managed by a board of trustees. The Consti-
tution provides that in all bond elections the electors shall vote in the
election precinct of their residenoe. There is no provision in the Consti-
tuticnrwhich expressly prohibits the Legislature from providing.that when
a defined territory is incorporated into en independent school district it
shall constitute an eleotion precinot for all elections held for school
purposes8 and in the absence of an express provision in the statute, author-
iaing such districts to that effect, we think it will be implied from the
very nature of the case that it was so intended.
We are therefore of the opinion that for the purpose of voting
on the iesumoe of bonds or for the purpose of voting oa all questions
affecting the interest of the public sohools within en independent school
&&riot, such territory legally constitutes a residence voting preoinct
&thin the meaning of the Constitution, the polling plaoes to be desi&ated
by the school~tnretees as provided in Artiole 2788* See Parks et alvs.
West, 108 S.W. 466.
But if we are mistaken in this view of the law in holding that
an independent school district oonstitutes a re.idenoe voting precinct in
detemining whether or not bonds should be issued and polls should have
been opened at all four voting precincts within the district,we feel oer-
tain that the courts would not invalidate the election where the board of
trustees, whose duty it is to designate the voting places, made an error
in naming only one, unless it bc show that they acted with a fraudulent
purpose.
It is a canon of the election law that an election is not to.be
set aside for a mere formality or irregularity which oan not,bc said iu any
. . I
Hon. F. B. Caudle - Page 3 (o-1303)
manner to have affected the result of the election. Courts are enxious
rather to sustain than to defeat the popular will. Dillon Xunicipal Car-
porations, Fifth Ed., Vol. 1, p. 642.
Corpus Juris states the rule as follows: "That where the
polling place selected by the proper officers is outside the election dis-
trict vho vote thereat arc not disfrsnchised on that account if the eleo-
tion is otherwise lawfully conducted. Evenwhcre the Constitution of the
State restricts the right to vote to the election distfiot wherein the
elector resides, yet where a distinction between an eleotion district and
an election precinct is recognized, votes cast at a polling place outside
of the precinct but within the district arc not to be rejected." 20 Cor-
pus Juris, 102; Davis vso State, 12 S.W. 857; Ex parte Stein, 135 S.1. 136.
In Ek p6rte Write, 28 S.K 542, the election precincts of a
tom were laid off from the aourthouse sE(uarc,the courthouse not being in-
cluded in any ofthem, the votes wsre cast in different roaas of the court-
house, the court held that the Constitution, Article 6, Section 2, provid-
ing that electors should vote in the precinct of their residence, did not
invalidate the election.
In view of the foregoing, it is.our opinion that the votes
of all the legally qualified voters of the school district voting at the
plaoe designated asthe polling place by the board of trustees should be
counted.
Very truly yours
ATT0RNE.i GENERAL OF +JXXAS
By
s/Claud 0. Bootlxaan
Claud 0. Boothman
Assistant
COB:sregw
APPBOVED SEP. 1, 1939
Approved Opinion Committee
s/Gerald C. Mann By EWE Chairman
ATTOFUJEXGENKW, OF TEXAS