Honorable T. M. Trimble,   First Assistant,
State Superintendent of Public Instruction,
Austin, Texas.

Dear   Sir:                                 Opinion No. O-7252
                                            Re: City Charter conflict with stat-
                                                 utes as to term of school trust-
                                                 ees and authority of trustees to
                                                 control school property.

                We are in receipt of your letter of May 27. 1946. in which
you submit    the following questions to this department for our opinion:

                “1.     Are we correct in assuming that trustees  of the
                        Vernon Independent School District shall serve
                        for three year terms?

                 2..      Does the City Charter provision which seeks to
                       ‘~ limit the tenure to two consecutive  terms  total-
                          ing four years have any restrictive   power in the
                         face of the provisions  of the State Law?

                 3.      Can the City Charter be interpreted    to prevent a
                         member from serving more than two consecutive
                       :three,,year terms if it cannot restrict  thentenure to
                       “a ‘total of four years ?

                 4.     Article 2773 provides for the sale of school prop-
                        erty by the board of Trustees   and the investment
                        of the money in more convenient School property.     : ‘:
                        Does this give the Trustees   the legal right to buy   ,I
                        property needed for school purposes ?

                 5.     If it should be necessary   for the proper authority
                        to file condemnation   proceedings   or suits to pur- i
                        chase property required for school sites, would
                        such proceedings   be instituted by the School Trust-
                         ees or the City Commission?

                 6.     We have voted bonds for the construction       of build-
                        ings, the acquisition   of sites, etc., the bonds have
                        b,een sold and the money is in cash or securities
                        for the Building Fund of the School District.      Is it
                        the responsibility,   solely, of the Board of Trustees
                        to enter into contracts    for the completion  of said
                        building programs 7”
Honorable      T. M. Trimble,     Page 2 (O-7252)




Article     2774a   (VACS)   provides   in part as follows:

                   “Section 1. Towns and cities which have here,tofore
          chosen their trustees by appointment of the City Council or
          Bonrd of Alderman,    shall be authorized to continue to choose
          their trustees in this manner; that is, by the appointment by
          the Board of Alderman     of said city or town; provided, that
          seven trustees shall be appointed, three of whom shall serve
          for one year, and two for two years and two for three years,
          and each year thereafter,    three trustees or two trustees shall
          be appointed for a term of three years, ~ D D w

                By virtue of Article 2771, school districts under the control
of incorporated   towns or cities are subject to the general laws; therefore,
Article  2774a is applicable to the Vernon Independent School District.

               The charter of the City of Vernon, as adopted in 1916, pro-
vides in Section 2, Article VI thereof that each of seven trustees  of the
school board shall be appointed by the City Commission     to serve for a
term-of two (2) years.

               Article  2774, as enacted by the Legislature    in 1905, provided
for two (2) year terms for school trustees.      The Forty-First    Legislature,
in 1930, enacted what is now known as Article 2774a, providing that Board
of Trustees   of municipally   controlled school districts  shall be appointed
for aterm   ‘of three (3) years, by virtue of a Constitutional   Amendment
adopted in 1929 (Sec. 16, Art. VII), Section 7, which is the repealing clause
of Article 2774a, provided that:

                   “All laws and parts of laws, both general and special,
          in conflict with the provisions  of this Act are hereby repealed.”

               Considering   the statutory provision above-quoted,   you are
advised, that your first question should be answered in the affirmative;
that U&trustees    of the Vernon Independent School District should serve
for three ,(3) year terms, and that the charter provisions    of the City of
Vernon in conflict with Article    2774a are invalid,

               The above statement also applies to your second question;
namely, ~the further provision of the Vernon Charter in Section 2 of Ar-
ticle VI thereof limiting the tenure of school trustees to four (4) consecu-
tive years until the expiration of two years from and after former service
as school trustee, being inconsistent  with the provision of Article 2774a,
is invalid.

               Your question as to whether the Vernon Charter can be in-
terpreted to prevent a trustee from serving more than two consecutive
three (3) year terms must be decided first upon the basis of whether such
interpretation  is a fair construction of the charter, and secondly, whether
Honorable   T, M. Trimble,    Page 3 (O-7252)



such interpretation  is consistent with the general        law as expressed   in Ar-
ticle 2774a and other pertinent statutes.

               The second paragraph of Section       2, Article   VI of the Charter
of the City of Vernon reads as follows:

               “At the first meeting of the Commissioners       herein
      provided for, or as soon thereafter     as practicable,  they
      shall appoint seven school trustees and provide that four
      of the said trustees    shall serve for two years and three of
      the said trustees    shall serve for one year; provided that
      no school trustee who has heretofore      served or who may
      hereafter   serve as such for a period of four consecutive
      years, shall be eligible to reappointment,     until the expira-
      tion of two years from and after his former service as
      school trustee.m

              According   to 30 Tex.   Juris.   page 53:

               “In interpreting    (a municipal charter) it is the duty
      of the court to ascertain,     if possible,   the intent, and, when
      so ascertained,    to give it effect.    State ex rel Barron v.
      Wofford 90 Tex. 514, 39 S.W. 921. The language must be
      construed as written, unless it is apparent that this would
      defeat the intent.    If possible,  the charter should be so con-
      strued as to avoid absurd and unjust consequences,            and so
      as to,uphold ~rather than nulify it. A construction         should be
      adopted which comports with the general public policy of the
      State, rather than one which would outrage such policy and
      destroy its ideals of Government.”

               Plainly, the intention of the people, as expressed    in the sub-
ject charter provision,   was to limit the tenure of school trustees to two
(2) terms, each of such terms being for two (2) years, (such two year terms
having been in accordance     with constitutional  and statutdry provisions    in
force at the time this section of the Vernon Charter was adopted, prior to
 1928).  As stated above, with the change in the statutory provision      regard-
ing the term of school trustees,    the limitation of the Vernon Charter in
that respect is no longer valid.     However, a fair and reasonable     construc-
tion of such charter,   in our opinion, should not defeat the intent of the peo-
ple of the City of Vernon to limit school trustees to two consecutive       terms
of office, unless the expression    of such intent is inconsistent with the ap-
plicable general laws of the State.

               Section 32, Article  1175 (VACS 1925) gives to “home rule”
cities, such as Vernon, the power to provide for the establishment    of pub-
lic schools and to have “exclusive    control” over same and to provide such
regulations  and rules governing the management     of same as may be deemed
advisable.   In the case of Temple Independent School District v. Proctor
(Civ.App.)  97 S.W.(2)  1047, the court said:
Honorable    T. h& Trimble,       Page 4 (O-7252)




                 “We think the language of subdivision     32 of Ar-
       ticle 1175 (VACS 1925) 0 a . carries with it the neces-
       sary implication    that such ‘exclusive   control’ means
       control to the exclusion    of the control exercised   by the
       county or state over other types of independent school
       districts  authorized and provided for by the school laws;
       and does not mean that by such “exclusive control’ such
       &strict6   are not amenable to the general school laws
       applicable to such drstrrcts.     To hold otherwrse woum be
       to ignore the very limitation in the Constitution itself
       thatthe charters-of    home rule cities must conform       with
       the Constitution and the general laws of the State.”
       (Emphasis    ours.)

               30 Tex.   Juris,    page   180 holds as follows:

                 “As long as the State does not, in its Constitu-
       tion or by general statute, cover any field of the activi-
       ties of cities, any given city is at liberty to act for it-
       self* But where the State has adopted a general law and
       applied it to all cities of a certain class. no city of that
       class may enact legislation      in conflict therewith.  (City
       of Beaumont v. ,Fall, 291 SW. 202).         Both the home-
       amendment to the Constitution and the statute provide
       that no home rule charter or ordinance passed under the
       same shall contain any provision inconsistent        with the
       general laws of the State. Such powers as are not granted
       to the qualified voters of cities by the amendment are fe-
       served to the Legislature;      and matters of regulation or
       control not so vested in the voters are proper subjects
       of legislative  action and control.     The amendment renders
       invalid provisions    of existing charters which are incon-
       sistent with subsequently      enacted general laws.’

                 The Legislature    having applied a general law (Article 2774a)
 to all cities of the class of Vernon, regarding the numbe,i.~.roethod of se-
 lection. andfersl   of off&x-of   schooltrustees.   it is,the opinion of this de-
 partipmt.~that*     ~CiSywf Vsimm has ~3x0au~tu              limit.~the~~tenure of
.office of schuoLtrustsasto-two-ter%ns,       since such iegislation would be
 inconsistent   with the provisions   of Art. 2774a, and therefore your third
~,question is answered in the negative.

              Your fourth question relative to the power of the school
trustees to buy property needed for school purposes is not, as you suggest,
governed by Art. 2773, which relates solely to the sale of property held in
trust by any citywn        for public school purposes,  and giving to the Board
of Trustee~s of such city or town, authority to sell such property with the
consent of the State Board.
Honorable   T. M   Trimble,   Page 5 (O-7252)




                Thisquestion    which you have raised, both directly and by
implication,   as to the division of authority between the Board of School
Trustees and the municipality      in school districts which have been as-
sumed by incorporated      towns and cities, is answered in the cases of
Hamilton v. Bowers,      146 SW. 629 (Civ.App,),     Poteet v. Bridges, 248
 0 .     5 (Civ,App.),  and Temple Independent School District v. Proctor,
97 S.W. 2 1047 (Civ.App.).

               In the case of Hamilton v. Bowers (supra) the Board of
School Trustees    for the city of Palestine brought suit against the mayor
and city commissioners      to compel them to turn over to the said trustees
certain funds, the proceeds from the sale of bonds issued by the said
city to provide funds for the erection of a new schoolhouse.      The mayor
and the city commissioners      were preparing to expend said funds for the
purposes for which they were provided, when the trustees,       claiming that
they had the exclusive    right to the possession, control and disposition  of
the funds, brought suit to obtain such funds.

              In its opinion, the court, citing provisions  of the Public School
Act of 1905, (which now appear in V.A.C.S.,     1925, as Articles  2768, 2772,
2773, 2801, et al) held as follows:

                “These provisions      of the statute expressly    give to the
      appellants the exclusive      control and management       of the public
      free schools in the City of Palestine and places in them, ‘the
      title to all houses, lands and other property owned, held, set
      apart or in any way dedicated to the use and benefit of the pub-
      lic free schools of said city.’ We cannot, however. agree with
      appellants that the sections of the act above set out give them
      the exclusive    right to the possession      of the funds in question,
       or the exclusive    right to contract, for the construction      of new
       schoolhouses,    or the repair of those now in use. and take from
       the city authorities    the right to use this money in the construc-
      tion of a new schoolhouse       and the repair of those now in use.
       Section 147, above quoted, expressly        authorizes   the city to pro-
      vide for building sites and buildings for its public free schools;
      and we think when, as in this case, the city has issued and sold
       its bonds, and thereby created a fund for the construction          of a
      schoolhouse,    it is authorized to uses such funds for the purpose
      for which they were created, and is not required to turn them
       over to the school trustees.       (timphasis    ours).

               “As before said, there is no express provision of the
      statute which imposes such duty or obligation upon the city;
      and such obligation does not arise by necessary    implication
      from the general purpose and intent of the act, considered     as
      a whole.   The right of the exclusive  control and management
      of the public free schools and the vestiture of the legal title
      to all property owned by or dedicated to the use and benefit
      of such schools do not necessarily    carry with them the right
Honorable   T, M. Trimble,   Page 6 (O-7252)




      to the possession   and the disposition   of all funds created   by
      the cityfor   school purposes.

                ‘“It is, we think significant that section 137 of the act,
      above mentioned, which directs that “all moneys and funds
      arising from the assessment           and collection    of any special
      taxes in such city or town for public free school purposes
      shall be by the assessor         and collector,   or other proper of-
      ficer of such city or town whose duty it is to collect the tax-
      es+ turned over directly to the treasurer           of the board of
      trustees.’    gives no such direction as to moneys or funds
      procured by the city by the sale of bonds issued and sold
      bl it under the authority given it under section 147, before
      quoted, to provide for school buildings.           If it had been the
      legislative     intent that all moneys and funds provided by the
      city for school purposes should be directly turned over to
      the treasurer       of the board of trustees,    it would not have con-
      fined or limited the provisions         of section 137 to moneys or
      funds arising from the assessment            and collection   of special
      taxes.    The moneys derived from special school taxes. which
      are only levied for the purpose of procuring funds to meet
      the ordinary current expenses           of conducting the school, are
      properly placed in the hands of the trustees,            who have the ex-
      clusive management and control of the schools,              and should
      have at their disposal the funds necessary            to meet the con-
      tracts of the teachers employed by them, and the other ex-
      penses necessarily         incurred by them in the management          of
      the schools; but no such reason exists for giving to the trust-
      ees the exclusive        right to hold and direct the expenditure       of
      money provided by the city by the sale of its bonds for the
      purpose of building schoolhouses.            On the contrary,    it seems
      to us that the city authorities,       upon whom the duty to have
      constructed      all public works and public buildings for the city
      is imposed by the city charter, whi~ch contains numerous pro-
      visions safeguarding         and protecting the rights of the public in
      all contracts for public works and buildings, are the proper public
      agents for the expenditure of funds of this character.’

                In the case of Poteet v. Bridges (supra) the city of West,
which had assumed control of the public free schools within its limits.
administering    the same through a Board of School Trustees,     had issued
bonds for the purpose of erecting a high school building.      The bonds were
 sold and the money placed in the City Treasury.      The city authorities
contracted for a lot upon which to erect said building.     Thereupon, the
Board of Trustees     and certain taxpayers objected to the site selected for
such building, and brought this suit to enjoin the city authorities   from
purchasing    said lot and from erecting said building, alleging that the money
obtained from the sale of said bonds should be turned over to the Board of
Trustees   of said independent school district,  for the reason that they alone
Honorable     T. M. Trimble,    Page 7 (O-7252)




were authorized to select the site for such building, and to contract for
the erection.  thereof.  The trustees attempted to distinguish these facts
fr,om the prior case of Ham,ilton v. Bowers (supra) on the grounds that
the city of West had extended its boundaries for school purposes only,
which circumstances     did not appear in the Bowers case.

                In upholding   the authority   of the municipality,   the court held
as follows:

                “A city, by assuming control of the public schools
      within its limits, does not thereby create a public school
      distiict,  separate from itself, but itself becomes a public
      school district.    It bec~oming such, it does not cease to be
      a municipal corporation,     but adds an additional corporate
      function.   This added function, in so far as it relate‘s to the
      management and control of the schools,       is exercised  b ya,
      board of school trustees. who are officers      of the municipal
      ity for that purpose, but the power to select sites for school
      buildings and the erection of such buildings is, as appears
      from . D a the decision in Bowers v. Hamilton,      supra, vested
      in the mumcipal author~ities.     (Emphasis   ours) ~ . ~

                8,
                  . . . When the lines of a city or town are extended
       in the manner provided by law, the territory       included in such
       extension.   for the purpose for which such extension was made,
       is thereby included within such corporate      limits, and for such
       purpose becomes a part thereof.       Such town or city still re-
       mains in control of its public schools    ‘within its limits,’ and
       such added territory    is, for school purposes,    within its limits.
       0 D0

                “The title to school property is vested in the boards
      of school trustees,    as is also the use and control of school
      buildings after they are erected,     (Art 2=,          R.C.S. 1925),
      tthev
      bu                                      for such ouroose monev bv
      either taxation or the sale of bonds.      In othei words, the mu-
      nicipality provides the schoolhouses      and the funds, in addition
      to those provided by the state, and the board of school trustees
      run the schools.     (Emphasis   ours) D ~ D

               “We hold that the municipal authorities  of the city of
      West, and not the board of school trustees of said city, have
      the right to select the site for the proposed school building,
      and to contract for the erection of sameaR D ~ ~

              In the case of Temple? Independent School Distr,ict vs. Proctor
(supra) the other side of this question was presented.     The City Commis-
sioners of Temple, acting under a provision    of the city charter, passed an
order rescinding   the action of the Board of School Trustees    of the Temple
Independent School District   (which had been assumed by the city) in regard
Honorable     T. M. Trimble,   Page   8 (O-7252)




to the appointment of Proctor as superintendent.          The court held that in-
sofar “as the city charter relating to the control and management           of the
public schools is concerned,     its provisions   should be tested by the provi-
sions of the general school laws (title 49 R.CS.)       in force at the time,:”
such laws giving to the Board of School Trustees         ‘“the exclusive  power to
manage and govern said schools.       D D ~ Insofar, therefore,    as the provi-
sions of the Temple Charter undertook to give the city commissioners
veto power of the acts of the Board of Trustees        in their government and
exclusive   control of the public schools of the district it contravenes       the
provision~of the Constitution,    because it is contrary to the general law of
the state in force at the time, and is therefore void.”

                 Referring   to the charter   of the City of Vernon (as amended
October     16. 1945). Section 1 of Article    VI thereof has the following pro-
vision:

                 lb 0 I * The City, in its capacity as an independent
      school district,       is authorized to issue negotiable bonds for
      the erecti~on, equipment.        repair and ,improvements       of public
      free school buildings,        the acquisition   of sites therefor,   and
      for other purposes for whic.h other independent school dis-
      tricts are authorized by general law to issue bonds, and for
      the purpose of refunding any such bonds.              Said bonds shall
      be authorized and issued in the manner prescribed               by gen-
      eral law for the issuance of bonds by other independent school
      districts,     except that the duties imposed by the general law
      upon the Board of Trustees          shall be performed      by the City
      Commission,         the City Commission       shall levy the taxes for
      the payment of said bonds and the interest thereon, and said
      bonds shall be signed by the Mayor and attested by the City
      Secretary,       D o O”

               In accordance    with the above-quoted    statutory. judicial and
charter pr’ovisions.   it is the opinion of this department that your fourth
question should be answered in the negative; that is, the School Trustees
do not have the right’ to buy property needed for school purposes with the
proceeds derived from the sale of school bonds, but that the authority for
such purchase, including the acquisition      of sites, erection of buildings,    or
the purchase of such buildings, is vested in the City Commission          of Ver-
non. It will be noted, however, as set forth in the above cited cases,          that
so soon as school property is purchased by the City Commission,            title to
such property is vested in the Board of School Trustees who then have the
exclusive  control and management       of the public schools and the further
plower under Art. 2773 to sell such property subject to approval of the
State Board of Education.

              your fifth question is necessarily answered,  pursuant to the
above statement,  by holding that “condemnation  proceedings”   or ““suits to
purchase propertyR must be instituted by the City Commission      and not by
the Board of School Trustees.
Honorable   T. M. Trimble,     Page 9 (O-7252)




               Your sixth question, like your fourth, falling within the pur-
view of Hamilton v, Bowers and Poteet v. Bridges (supra). is answered
by stating that the funds realized from the sale of the school bonds voted
by the city should be under the exclusive   control of the City Commission
to be expended by them for the purpose for which such bonds wer’e voted,
and that the said City Commission    has the sole authority to enter into
contracts for the above purpose. and not the Board of School Trustees.

               We believe    the above   statements       fully answer   the questions
you   have presented.

                                          Very    truly   yours

                                          ATTORNEY          GENERAL      OF TEXAS




                                          By     /s/W.    N. Blanton, Jr.
                                                          W. N. Blanton, Jr.
                                                                  Assistant

WNB/JMc/cm

APPROVED       JUL 5, 1946

/s/ CARLOS ASHLEY
FIRST ASSISTANT
ATTORNEY    GENERAL

                                          APPROVED
                                         Opinion Committee

                                          By /s/ BWB
                                             Charrman