Honorable F. B. Caudle County Attorney Franklin County Mt. Vernon, Texas Opinion Mmber O-1303 Ret Does the~Board of Trustees have authority to designate polling places inbond elections for Dear Sir: an independent schooldistrict?

We are in receipt of your opinion request and quota from your letter as follows:

"In an electionto determine the issuance of bonds for an independent school districtwholly within a Justioe Precinct and containingthe entire city limits of a toam, by an order of the Board of Trustees ordering the election,the courthousewas designated as the only polling place. The Justioe Precinct in which the independent sohool district was located had four voting precinots. All the votes in the independent sohooldistrict election were cast in eleation Precinct k. 2.

"First: In view.& Artiale Six, Se&ion Three-A of the Constitution,would any of the votes be counted exoept those residing in Precinat No. 21 "Secondr Article 2708, R.S. 1926 authorizes the Board of Trustees to designate the polling plaaes and the order~did designate the courthoWe a8the polling plaoe; would Article Six, SectionThree-A of the Constitution,or Article 2768, R.S. 1926 dontrol?" Article 6, Se&ion Sa of the Constitutionreads p8 fOlloWat %hen an election is held by aqy county, or any number of aountiss,or any political subdivision of the State, or my political subdivisionof a county,or any defined district nov?or hereafter to bs described and definedwithin the State and which may or may not includetams, villages or munioipal corporations,or any city, town orvillage, for the purposs of issuing bonds or otherwise lending oredit, or expendingmoney or. I\

Hon. F. B. Caudle - Page 2 (0-13X)

assming any debt, only qualified eleotors who own taxable property in the State, oounty, political subdivision,district, city, tom or village where such eleotion is held, and who have duly rendered the same for taxation, shall be qualified to vote and all electors shallvote in the electionprecinct of their residenoer* Article 2788 reads, in part, as follows: * e . * The electionfor saidbonds shallbe held within thirty days after order of election, as fixed in the eleotion order. The board of trustees shall at the seme time fix the pollingplaoes for holding such election and name a judge and tm clerksat each polling place "

. . . A11 independentschool districts are created for free school purposes aud their affairs arcmanaged by a board of trustees. The Constitution provides that in all bond elections the electors shallvote in the electionprecinct of their residenoe. There is no provision in the Constituticnr which expressly prohibitsthe Legislature from providing.thatwhen a defined territory is incorporatedinto en independentschool district it shall constitutean eleotion precinot for all electionsheld for school purposes8and in the absence of an expressprovision in the statute, authoriaing such districts to that effect,we think it will be implied from the very nature of the case that it was so intended.

We are therefore of the opinion that for the purpose of voting on the iesumoe of bonds or for the purpose of voting oa all questions affecting the interest of the public sohoolswithin en independent school &&riot, such territory legally constitutesa residencevoting preoinct &thin the meaning of the Constitution,the pollingplaoes to be desi&ated by the school~tnreteesas provided inArtiole 2788* See Parks et alvs. West, 108 S.W. 466.

But ifwe aremistaken in this view of the law in holding that an independentschool district oonstitutesa re.idenoevoting precinct in detemining whether or not bonds shouldbe issued and polls shouldhave been opened at all fourvoting precinctswithin the district,we feel oertain that the courtswould not invalidatethe electionwhere the board of trustees,whose duty it is to designatethe voting places,made an error in naming only one, unless it bc show that they acted with a fraudulent purpose. It is a canon of the election law that an election is not to.be set aside for a mere formality or irregularitywhich oan not,bc said iu any. . I

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manner to have affected the result of the election. Courts are enxious rather to sustain than to defeat the popularwill. DillonXunicipal Carporations, Fifth Ed.,Vol. 1, p. 642.

Corpus Juris states the rule as follows: "Thatwhere the polling place selectedby the proper officers is outside the election district vho vote thereat arc not disfrsnchisedon that account if the eleotion is otherwise lawfully conducted. Evenwhcre the Constitutionof the State restricts the right to vote to the electiondistfiot wherein the elector resides,yet where a distinctionbetween an eleotion district and an election precinct is recognized, votes cast at a polling place outside of the precinct but within the districtarc not to be rejected." 20 Corpus Juris, 102; Davis vso State, 12 S.W. 857; Ex parteStein, 135 S.1. 136.

In Ek p6rteWrite, 28 S.K 542, the electionprecincts of a tom were laid off from the aourthouse sE(uarc, the courthousenot being included in any ofthem, the votes wsre cast in differentroaas of the courthouse, the court held that the Constitution,Article 6, Section 2, providing that electors shouldvote in the precinct of their residence, did not invalidate the election.

Inview of the foregoing, it is.our opinion that the votes of all the legally qualifiedvoters ofthe schooldistrictvoting at the plaoe designated asthe polling place by the board of trustees should be counted. Very truly yours ATT0RNE.i GENERAL OF +JXXAS By s/Claud 0. Bootlxaan Claud 0. Boothman

Assistant COB:sregw APPBOVED SEP. 1, 1939 s/Gerald C. Mann ATTOFUJEX

GENKW, OF TEXAS Approved Opinion Committee By EWE Chairman