45 S.W.2d 846 | Ky. Ct. App. | 1931
Sustaining motion in part to dissolve injunction, and overruling motion in part to dissolve.
The Salt Lick graded school district is governed by a board of trustees composed of five members, elected by the voters of the district (Ky. Stats., sec. 4465). The term of each member is three years, beginning with the second Saturday in May following the election, and continuing until the election and qualification of his successor.
The term of two members of the Salt Lick board expired in May, 1931, and C.L. Staten and C.M. Crane were elected to succeed them. Mr. Staten duly qualified, but Mr. Crane failed to do so. The statute provides that "failure to qualify within seven days after the election shall constitute a vacancy." It further provides that a vacancy in the board shall be filled by the "remaining members." E.R. Fannin and Rosamond Seese were the members whose terms had expired. They agreed between themselves that Mrs. Seese should act as a hold-over member in the place of Mr. Crane, until her successor was elected and qualified. Assuming without deciding that she could so act (Booth v. Board of Education,
The statute means that the vacancy shall be filled by the "remaining members," and does not include one *3
whose term has expired and whose very place is to be filled. In re Wells Tp. School District,
It was the statutory duty of the four "remaining members" to fill the vacancy caused by the failure of Mr. Crane to take the office. But they were in a deadlock and unable to agree upon a person to fill the vacancy. After some correspondence with the state superintendent of public instruction, an effort was made to hold another meeting at which no quorum was present, and it was resolved into a mass meeting of the patrons of the school. Resolutions were adopted to the effect that a petition be prepared and presented to the Governor or the superintendent of public instruction asking for the appointment of a fifth member of the board. The situation was presented to the Governor, and he appointed D.M. Waltz to fill the existing vacancy. He reappointed or retained Kercheval and Staten, who had tendered their resignations to him. The vital question presented is whether the Governor may, in the circumstances existing, make a valid appointment to fill a vacancy in the board. If so, the other questions argued need not be noticed.
It is provided by statute that the Governor shall fill all vacancies in office where no other provision of law for the filling thereof has been made. Ky. Stats., sec. 3758.
When the board is without any members, the Governor may appoint the entire body. Nelson v. Board of Education,
If the deadlock persists, the power of the remaining members to fill the vacancy becomes subject to the operation of the statute which authorizes the Governor to act and which was designed to cover every case not otherwise provided for by law.
The law abhors vacancies in offices, and the presumption is against a legislative intent to create or to allow a condition which may result in an executive or administrative office remaining unoccupied. 46 C. J. 973, sec. 117.
The statutory declaration of a vacancy, and the deadlock of the members designated to fill it, which deadlock has continued for a considerable time, creates the very situation contemplated by the statute describing the conditions under which the chief executive may act.
In this view of the case, the Governor's appointment of D.M. Waltz was valid and the circuit judge erred in enjoining him from acting as a member of the board.
Since the vacancy was legally filled by the Governor, as a consequence of the deadlock among the remaining members, it follows that the rights of Mrs. Seese as a hold-over member ceased (Fullerton v. Mann,
It is therefore ordered that the motion of A.M. Waltz be sustained and the temporary injunction issued against him is now dissolved; and the motion of Mrs. Seese to dissolve the temporary injunction against her is overruled.
CHIEF JUSTICE THOMAS considered this case with me, and concurs in the conclusions reached.