Bd. T. Salt Lick Grd. C. School Dist. v. Kercheval
| Decision Date | 19 August 1931 |
| Citation | 242 Ky. 1 |
| Parties | Board of Trustees of Salt Lick Graded Common School District et al. v. Kercheval et al. |
| Court | United States State Supreme Court — District of Kentucky |
1. Schools and School Districts. — Occupation of office of trustee of school board by hold-over member instead of elected person who failed to qualify could not prevent filling of vacancy by constituted authority (Ky. Stats., sec. 4465).
2. Schools and School Districts. — Hold-over member of school board cannot participate in selection of own successor (Ky. Stats., sec. 4465).
3. Schools and School Districts. — Where school board is without any members, Governor may appoint entire body (Ky. Stats., secs. 3758, 4465).
4. Schools and School Districts. — Where vacancy in school board must be filled by it, but there does not exist a quorum, board is powerless to act (Ky. Stats., secs. 3758. 4465).
5. Schools and School Districts. — Where, by virtue of lack of quorum, school board is powerless to fill vacancy, Governor may do so (Ky. Stats., secs. 3758, 4465).
6. Schools and School Districts. — There being no express statutory provision for filling of vacancies on school board where remaining members, because of deadlock, are unable to do so, Governor has such power (Ky. Stats., secs. 3758, 4465).
7. Schools and School Districts. — Where deadlock in school board exists, Governor may, after reasonable time, exercise power of appointment (Ky. Stats., secs. 3758, 4465).
8. Statutes. — Statutes will not be construed in such manner as to destroy machinery of government, but an interpretation will be adopted that promotes the orderly functioning thereof (Ky. Stats., secs. 3758, 4465).
9. Offices. — Law abhors vacancies in office, and presumption is against legislative intent to create or to allow condition which may result in executive or administrative office remaining unoccupied (Ky. Stats., secs. 3758, 4465).
CONNOR EWING for plaintiffs.
CHAS. D. GRUBBS for defendants.
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, 191 Ky. 147, 229 S.W. 84; Fullerton v. Mann, 214 Ky. 764, 284 S.W. 113), her temporary occupation of the office to prevent a hiatus did not preclude the existence of a vacancy and the filling of the office by the duly appointed authority (46 C.J., sec. 110, p. 969), and she could not, in any event, participate in the selection of her own successor (46 C.J. 952; Glass v. City of Hopkinsville, 225 Ky. 428, 9. S.W. (2d) 117; Terry v. Cornett, 136 Ky. 628, 124 S.W. 870; Dixon v. Caudill, 143 Ky. 623, 136 S.W. 1043; Shepherd v. Gambill, 75 S.W. 223, 25 Ky. Law Rep. 333; Seiler v. O'Maley, 190 Ky. 190, 227 S.W. 141; Bownes v. Meehan, 45 N.J. Law 189; Com. v. Krapf, 249 Pa. 81, 94 A. 553).
The statute means that the vacancy shall be filled by the "remaining members," and does not include one whose term has expired and whose very place is to be filled. In re Wells Tp. School District, 297 Pa. 242, 146 A. 601.
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, 213 Ky. 714, 281 S.W. 808. When the vacancies must be filled by the board, as a corporate entity, and so many vacancies exist that a...
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