Appeal from a decree of the Circuit Court of the City of Colonial Heights. Hon. William Old, judge presiding.
Present, All the Justices.
SNEAD, J., delivered the opinion of the court.
This appeal involves a contest over a seat on the school board of the city of Colonial Heights. Alan R. Loper filed a bill in chancery for a declaratory judgment and other relief against the city of Colonial Heights, its city council, the individual members of council and Malcolm P. Alley. Loper sought, among other things, to recover a seat on the school board occupied by him that had been declared vacant by the city council and subsequently filled by appointing
Alley. The trial court granted Loper substantially the relief that he sought, and the city, its city council, certain members of the council and Alley have appealed.*fn1
The record, which consists of the pleadings, orders, decrees and exhibits, discloses that on June 28, 1966, pursuant to § 20.2*fn2 of the city charter, the city council elected Loper, Maurice W. Kidd and John Russell trustees of the city school board for a term of three years beginning on July 1, 1966. Loper had served two prior terms on the board and was re-elected at this time by a four to three vote.
Kidd and Russell took their oaths of office on July 11, which was within thirty days after their terms of office began as provided by § 20.15*fn3 of the city charter. Loper, who had not taken the oath of office for his new term, attended the organization meeting of the school board held on the same day and was elected to serve as chairman of the board.
On September 1, 1966, three newly elected city councilmen commenced their terms of office. On September 21, Loper took his oath
of office. The next day, John S. Hanson, a member of the House of Delegates representing the county of Chesterfield and the city of Colonial Heights and H. P. Armstrong, city attorney of Colonial Heights, conferred with Kenneth C. Patty, First Assistant Attorney General of the Commonwealth of Virginia, concerning the status of the office occupied by Loper. By a letter opinion Assistant Attorney General Patty advised the above gentlemen, among other things, that since Loper had failed to take the oath of office within thirty days after July 1, 1966, as prescribed in § 20.15 of the city charter, a vacancy occurred in that office. He further advised that the taking of the oath of office after the thirty-day period expired "is of no effect and does not in any way fill the vacancy", and that "it would be proper for the City Council to appoint some person to fill this vacancy" under the provisions of Code, § 22-89.
After receipt of this opinion, the city council held a special meeting on September 23. At that meeting a resolution was adopted appointing Malcolm P. Alley a "trustee of the School Board of the City of Colonial Heights for a term expiring three years from July 1, 1966 to fill a vacancy on said board created by the failure of Alan R. Loper to take the oath of office within the time prescribed by law."
Three days after his appointment, Alley took the oath of office as prescribed by § 20.15 of the charter and performed his duties as a trustee until he was enjoined from acting by the court's final decree entered on June 19, ...