Honorable Denver E. Perkins Opinion Number O-2088
County Attorney Re: Construction of the validity
Gonzales County of conditional election order.
Gonzales, Texas
Dear Sir:
Your request for an opinion on the following question has
been received by this office. We quote from your letter as follows:
"On August 19, 1938, the Board of Trustees of the Gonzales
Independent School District passed an order calling an election
for the purpose of submitting the question as to whether or not
bonds of such school district should be issued for the purpose
of erecting certain school buildings. At the same meeting at
which the election was called the Board of Trustees passed an-
other order reciting.that such election had been called; that
an application had been made to'the Public Works Administration
for funds to supplement the funds derived from the sale of such
bonds, and that in the event the said grant was not received
from the Public Works Administration the Board covenanted and
agreed with the voters that said bonds would not be issued. No-
tice of the election was given, but nothing was said in the no-
tice in regard to the resolution not to issue the bonds in the
event the PWA grant was not secured. However, in paid newspaper
advertisements, paid for and signed by the said Board of Trustees,
the statement was made that such bonds would not be issued if
voted unless the PWA grant was secured. The election was held
and it resulted in a majority vote for the issuance of the bonds.
"The application for the grant from the PWA was denied for
some reason. The Board of Trustees would still like to erect cer-
tain buildings for the high school. They propose to hold a ref-
erendum on the question as to whether or not the bonds shall be
issued, even though no PWA grant was secured. They propose to
hold this referendum at the time the regular school trustees are
elected in April. If the referendum shows a majority in favor
of the issuance of these bonds, even though no~PWA,grant was se-
cured, then the Board of Trustees intend to proceed with the sale
of these bonds. Assuming that the majority of the people voting
at such trustee election and referendum are in favor of issuing
the bonds, the question is whether or not the Board can legally
issue them even though no PWA grant was received."
Honorable Denver E. Perkins, page 2 (o-2088)
The order passed by the Board of Trustees on August 19, 1938,
which was prior to the election authorizing the issuance'of bonds, reads
in part as follows:
'WHEREAS, application has been made to the Public Works Ad-
ministration for a grant to supplement the funds derived from the
sale of the above mentioned bonds;
"NOW, THEREFORE,BE IT RESOLVED BY THE BOARD OF TRUSTEES OF
GONZALES INDEPENDENT SCHOOL DISTRICT:
"That in the event the above mentioned application to the
Public Works Administration for a grant is not approved, Said
bonds as authorized at the election, shall not be issued, and
this Board hereby covenants and agrees with the voters that said
bonds will not be issued unless the District receives a grant
from the Public Works Administration."
'The authorities seem to hold that the approval by the electors
of the proposed bond issue with whatever terms and conditions that the
governing body imposes thereon previous to the election, creates a status
analogous to a contractual relation. In construing a similar order
passed by a commissioners' court prior to a county-wide bond election,
the Supreme Court of Texas in the case of Black et al vs. Strength et al.,
246 LW. 79, said:
"The order would nothave been made save,with a view to its
being relied on by the voters. With the bond issue authorized
by votes cast in reliance on the order, as must be assumed, it
could not be arbitrarily ignored or repudiated without involving
the perpetration of fraud or its equivalent on the voters.
"Under these circumstances, the order was, in effect, a con-
tract with the people, and good faith required that the contract
be kept."
Any other rule would tend to undermine public confidence in the acts
of public officers. See also Golden Gate Bridge and Highway District
vs. Filmer, 21 Pac. (2d) 112; Perry vs. Los Angeles, 203 Pac. 992.
Whatever might be the moral effect of releasing the Board
of Trustees from their promise not to issue the bonds unless the Pub-
lic Works Administration grant was received, the proposed referendum
election would amount to no more than a "straw vote" and would be in-
effective for any purpose since the qualifications of ,the electors who
vote on bond elections and those who vote at general trustee elections
are not the same. City of Houston vs. ,McCraw, 113 S.W. (2d) 1215.
(Texas Supreme Court, 1938).
Honorable Denver E. Perkins, page 3 (O-2088)
Therefore, it is the opinion of this department that the Board
of Trustees cannot legally issue the bonds in question unless the dis-
trict receives a grant from the Public Works Administration.
Trusting that this answers your question, we are
Very truly yours
ATTOBNEYGENXBALOFTEXAS
By /a/ Claud 0. Boothman
Claud 0. Boothman
Assistant
COB-s-lm
APPROVED MAY 1, 1940
/s/ Gerald C. Mann
ATTORNEY OwERAt OF TEXAS
APPROVED
OPINION
coMMITl!EE
BY /s/ BWB
CHAIRMAN