The opinion
Honorable J. E. Angly, ~abr
Poard of Managers of !P!?xasState Railroad
Palestine, Taxa
Honorable Coke Stephenson
Lieutenant Governor of Texas
Austin, Texas
Gentleman: opinion No. O-3162
Re: Authority of Lieutenant Governor
and one member of Board OiFMLuIagers
of Texas State Railroad to fill
vacanoy.
This will aokaowladgs receipt of your request of February 14, 1941
aaoompanied by a letter of explanation from A. E. Sutton, County Atditor of
Anderson County, for the opinion of this department relative to the authority
of the Lieutenant Governor aoting with one member of the bard of Xanagers
of the Texas State Railroad to fill a vacancy existing in said Baard.
As we understand the fasts, under Senate Bill 66,,Aots, 38th Legislature, ~
Regular Session, 1923, page 3, the Board of Manager8 of the Texas State
Railroad consists of three (3) members originally appointed by the Lieutenmt
Governor. At the present time there are two members on said Board, the
third position being vaoant. You desire to know whether authority exists
for the Lieutenant Governor and one of such remaining members to fill the
vaoanoy under Be&ion 1 of Senate Bill 69, whioh reads as follows;
"Seotion 1. The Lieutenant Governor of the State of Texas is her&y
authorized to appoint two men who are sxperienaed in the management
and practioal operation of railroads, and to appoint a third man as
ohairman, who together with the other two appointeos shall constitute
the Board of Managers of the Texas St&e Railroad, whioh board shall,
in the manner and as provided by law, exeraise fnll and plenary control
and management of the Texas State Railroad, The members df siid boa$d
shall serve without pay exoept suoh aotual and neoessary expenses as
may be incurred by them while in the performance of their duties as
members of said L&d of Managers. &d should there become a vaoancy
in the Board of Managers thus oreatea.,the remainlrrgmember or members
of the board, together vnth the Lieutenant Wvernor ef,Texas, shall m
writing designate a proper person to fill m&I% vacanayxoh member
& selected shall be cloth&d ,tithall the powers of the original
member whose place he is selected to fill." (Undsrsooring ours)
Hon. J, 1:.dngly
Ron. Coke Stephenson, ?agn 2 O-3162
It is our opinion that either remaining members of the FJdard(if both will
not oonour in the appointment) aoting in oonoort with the Liautenant Governor
may fill the vacancy. This must necessarily be true otherwise, one member
oould always paralyze the appointing power with the Legislature created.
As stated in 22 R. C. t, at page 433 "*'withthe consent of' any board means
with the oonsant of a majority of its members.'"I:eealso Salby va Portland,
14 &a, 243, 12 ?ao, 37'7,58 Am, Rep, 307. See also Rousse V* Johnson, 234
Kye 473, 26 S. ii. (2d) 745.
It is also stated in 46 Corpus Jur~s at page 9% "where an appointment is
to be made by two bndias 'byjoi.i,,t ballot, :
in case thoir nomination for
the office separately made da not non~ur~ the appo~':A~xrcntof an offiaer ivy
a majority of the whole numhcr after assembly 3:;joj,ntmeating is a valid
appointment, although the me>:;,e~s of cnicof such bod.iestaken no part
~therein O'n