Santa Fe daily New Mexican. [volume] (Santa Fe, N.M.) 1885-1897, 1895-10-09
QUESTIONS ANSWERED.
Opinion of the Solicitor General Re-
garding Validity Of Certain
School Elections and Kin
bred Matters.

Solicitor General Victory has addressed
the following self-explanatory official
communication to Hon. Amado Chaves,
territorial superintendent of public in
structlon:
am in receipt of your letter dated
September 10, In which you request my
official opinion as to the validity of GER
tain school elections in Taos county, and
also ask whether in school district where
there has been no election the old direc-
tors hold over. The first of these in
quiries is as to the legality of an election
in district where the judges of election
allowed parties to vote who were not tax
payers. The law providing for the cleo
ton of school directors distinctly pre-
scribes that "only legal voters residing
and paying taxes in said district shall be
qualified to vote at said election" Hence
parties, not tax payers, who voted, did SO
illegally. Where no fraud is charged
however, the mere fact that illegal votes
were received will not affect the election
OF render it void, unless the number was
great enough to affect the general result
The only means, therefore, by which to
settle the question is to institute proceed
ings which will test the number of illegal
votes thus cast. In the absence of such
an adjudication the election is to be con-
sidered valid.
You also inquire whether in district
where three persons presided at the cleo
ton, but only one of them was director,
the election was legal. The law (see sec.
tion 10 on page 81 of the acts of 1891 un-
doubtedly is that at all elections held sub
seq uent to the first, the elections shall be
held by the directors on the first Monday
of June. The holding of an election after
the first one, at which only ons director
was present was certainly irregular, but
it can not be considered 80 fatal an irreg-
ularity as to make the election void.
This provision in the statute is directory
and if the election was otherwise fair and
no fraud charged, the result will not be
vitiated by the fact that the directors
failed to do their duty. See American &
English Encyclopedia of Law, Vol. 6, p.
3O3; also State ex rel Bancroft vs.. Stumpf
81 Wis. $40, and cases there cited.
As to the district in which no election
was held at all, it lie my opinion that it is
the duty of the old directors to serve
until their successors are elected and
qualified. The act of 1891 above referred
to provides that the first "three directors
shall hold Office for one year and until
their Successors are elected and qualified
The same act provides that these three
directors first elected shall post notices
of an election to be held by them on the
first Monday in June by the qualified
voters for three school directors, "whose
term shall be one year." While it is true
that the clause fixing the term of Office
of the directors after the first three omits
the clause until their successors are
elected and qualified there is no con
ceivabe reason why the term of Office of
the first directors should continue until
the election and qualification of their
successors and the same rule not apply
to subsequent directors; and 1t must be
presumed that the clause, "whose term
shall be one year," is to be construed
with the words above land until their
successors are elected and qualified"
Even if the statute in question be con-
strued not to provide for the continuance
in office of the three directors, section
26O8, of the Compiled Laws provide that
call officers appointed or otherwise shall
continue in Office and in the discharge of
their duties until others are appointed or
elected and qualified according to law"
which provision is broad enough to in
clude such officers as school directors.
But going further, even though there be