dissenting:
I am unable to concur in the majority opinion for two reasons, first, because I believe the problem actually involved is not to determine when an election is at an end, but whether the result of an election when ascertained according to statutory requirements relates to the day on which the election was held, or to some future uncertain date, and, second, for the reason that the notice *292of the special meeting of the board of education, held at 7:00 P. M. on the eighth day of August, 1958, was insufficient insofar as the two absent members were concerned.
First: According to the stipulation, two members of the board of education were to be elected at the election held on August 5, one for a “long term”, to begin January 1, 1959, “to fill the vacancy created by the expiration of the term of Howard Schultz”, of Lewis District, and one to fill a “short term”, a vacancy created by the expiration of the “term of James C. Dabney”, of Hannan District. Dabney was an appointee, to fill a vacancy, “until his successor has been duly elected and qualified”. On August 5, the day of the election, two members of the board of education, Robert Adkins and Howard Schultz, were residents of Lewis District. The term from which Schultz resigned, the remainder of his unexpired term, was not involved in the election; in fact, no vacancy existed as to the same until long after the day of the election. Though Jones received a greater number of votes than Green, he could not have qualified for the office on the day of his election, because of the statutory provisions precluding more than two members from the same district from holding such office, but Green could have qualified, under the statute, on that day. The real question, therefore, is whether the creation of a vacancy, and the filling of that vacancy by appointment, may preclude a candidate from holding the office for which he was a candidate and for which he received a sufficient number of votes, and for which he was, in every respect, eligible.
It is my view that what third parties may do subsequent to the day of the election should not be permitted to defeat the right of a candidate to be inducted into the office for which he received a sufficient number of votes on the day of the election to entitle him to qualify at that time. To hold otherwise, it appears to me, places it within the reach of third parties to defeat the purpose of the statute and the will of the voters. What person will be*293come a candidate for such an office, knowing that by the simple procedure of the resignation of one or more members subsequent to the day of the election, after the results are known but before the completion of the canvass, and the filling of the vacancy or vacancies thereby created by appointment of a person or persons from the district of the candidate, he may be denied the offiice to which elected? The Legislature could not have intended any such result. It could not have been intended that the majority of a board of education can so perpetuate their control of the affairs of the public.
The statute, Code, 3-4-5 (b), as amended, provides that the candidate “receiving the highest number of votes shall be elected for a long term, and if more than one is to be elected * * * the candidate or candidates receiving the next highest votes shall be declared elected for any short term or terms * * * but no more than two such members shall be elected from the same magisterial district * * * and if such magisterial district has one hold over member on said board only one member shall be elected”. Notice that the statute requires that the candidate receiving the sufficient number of votes “shall be declared elected”. The matter is not left hanging open or dependent on some future event such as the creation of a vacancy in some office not involved in the election.
My examination of the authorities relied on by the majority brings me to the conclusion that they are not controlling as to the question before the Court. They relate only to a situation where a candidate claims the right or title to an office before the official determination of the results of the election. None of them, insofar as I can discover, delay the effect of the election to a day subsequent to the day on which the election was held, but, if they do, I would prefer to be bound by the express requirement of the statute, which was enacted subsequently and applies very specifically to the facts in the instant case.
I think it not amiss to point out, at least for the purpose of indicating the danger of the holding of the ma*294jority, that, according to the stipulation, the board of education held a meeting on August 5, 1958, the very day of the election, “with all members present”; that, though the written resignation of Schultz was dated “August 4, 1958”, the resignation was not mentioned to Arnold or Adkins; that on August 8, 1958, the county court sat as a board of canvassers; that, without any explanation thereof, and without having canvassed the votes for members of the board of education, an adjournment was taken until August 11, 1958, and that subsequent to the adjournment the unduly hurried call for a special meeting was made, and the resignation of Schultz obviously hurriedly accepted by the three members of the board then present.
Second: I am in agreement with the majority as to the necessity for reasonable notice to the respective members of the board of education, with reference to the calling of the special meeting, in the circumstances of this case, but I am of the view that the notice given to Arnold and Adkins concerning the time of the holding of the special meeting was not a reasonable notice, and rendered the action taken by the board at that meeting void. The notice was delivered to Arnold and Adkins only two and one half hours before the hour fixed in the notice for the meeting, after they had entered on their duties at the plant where they worked, approximately twenty miles from the place designated for the holding of the meeting. This, in my opinion, was insufficient time for the members to have been released from their work, assuming that that could have been arranged, prepared for the meeting and reached the place designated for the holding thereof. There is no attempt to show that they could have done so, and though the majority admits that the “burden of proving” reasonable notice rests on the party who asserts it, the majority decides “presumably” that they could have done so, and “presumably”, that traffic conditions were such that they could have done so, and “presumably” that “ordinary means of transportation” were available. I had believed that interests of the public demanded greater caution and con*295sideration in the transaction of its affairs by public officials, especially by members of a board of education.
Being of the views indicated, I respectfully dissent. I am authorized to say that Judge Browning concurs in the second proposition discussed in this dissent. We would have reversed the trial court.