Relator seeks, by mandamus, to require the board of education, of Kanawha county to issue, and the county superintendent of schools, as financial secretary, tо countersign, a warrant in payment of legal services rendered at the behest of the board of education of Charleston Independent School District after thе passage of chapter 8, Acts Extraordinary Session 1933, known as “County School Unit Act”, the constitutionality of which was, at the time of relator’s employment, being seriously questioned.
Respondents, on demurrer, take the position (1) that the independent school board was abolished on May 22, 1933, and that relator’s employment on the day following was therefore void and of no effect; and (2) that, in any event, the petition failed to aver facts showing an existing necessity for the employment of counsel, in the absence whereof the prosecuting attorney was, under Code 1931, 7-4-1, the only authorized legal advisor.
Did the independent board have an existence subsequent to May 22, 1933?
The аct, which was put in effect from passage, provides that the state superintendеnt of schools, on or before the first day of July, 1933, shall appoint a board of eduсation for each county, whose members shall serve until their successors shall be еlected and qualified, and that *316 “such interim board shall take office on July 1, 1933.” Article 5, seсtion 1. If, as contended for by the demur-rant, the abolition of the several school districts of the state (article 1, section 3) automatically dissolved the respective boards of education, in whom did the management vest prior to July 1st, the date the new board was to “succeed and be subrogated to all the rights of former magisterial and indеpendent district boards”? Article 5, section 5. We find nothing in the act which contemplates a vesting in any other agency during the period May 22nd to July 1, 1933. From a reading of the act, it sеems plain to us that the legislature never intended that there should be a hiatus between the abolition of the old board and the accession of the new. We are оf opinion therefore that the members of the old board continued as de jure officiаls until July 1, 1933, but even if this position were not well taken, they were, beyond peradventure, de facto officers.
It is quite generally recognized that when a public office is abolished by a duly constituted authority, the incumbent thereof ceased to be an officer, unless it is necessary to hold the persons assuming to act to be
de facto
officers to prevent great public injury. 46 C. J. 1054-5. An exсeption is also recognized in cases where offices have been crеated which have afterward been declared unconstitutional.
Burt
v.
Winona & St. Peter R. Co.,
In referencе to the remaining point, we note from the pleading and exhibit resolution attachеd thereto that relator was employed for the purpose of advising the boаrd of the effect of the County Unit Act upon certain properties held by it, including the City Librаry and Laidley Field; of representing it in certain impending litigation on behalf of patrons of the schools of the district, in which the constitutionality of the act was to be attаcked; and of aiding it in having the act declared invalid.
. While Code 1931, 7-4-1, provides that it shall be the duty of the prosecuting attorney “to advise, attend to,
*317
bring, prosecute or defend * * * all matters, actions, suits and proceedings in which such county or • any district board of education is interested”, there is nothing therein to negative the right of the district or indeрendent board to employ other counsel when, in its discretion, there is necessity therefor.
Mollohan
v.
Calender,
One of the duties of the proseсuting attorney is to render aid to the state, and he is supposed to regard all laws аs constitutional, until the same are declared to be otherwise. It would be his duty to advisе the new board when it began to function. In other words, the independent board, in order tо secure disinterested advice concerning its legal status, if any, must of necessity look elsewhere than to the prosecuting attorney.
So viewing the two questions on which this proceeding is bottomed, we direct the issuance of the writ.
Writ awarded.